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2012 DIGILAW 714 (MP)

Bodshah Singh v. State of M. P.

2012-07-14

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2012
JUDGMENT 1. By knocking thd doors of this Court and praying to invoke the jurisdiction under section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, it has been prayed by the appellant/petitioner to set aside the order dated 20.9.2011 passed by the learned Writ Court in W.P.(S) No.1202/2005 dismissing the writ petition of the appellant. 2. No exhaustive statement of facts is required to be narrated for the purpose of disposal of this appeal, suffice it to say that appellant who was a member of Armed Force and was serving on the post of Constable was posted in the office of Commandant 26Th Battation S.A.F. Guna (respondent no. 4). A charge-sheet was served upon him that he was unauthorizedly remain absent and also interpolated the medical certificate. These charges were denied by him as a consequence thereto a departmental enquirty was initiated against him. Two charges were made against him which reads thus:- vkjksi 1- fnukad 24-10-2000 vi- ls fnukad 28-10-2000 rd ds fy;s pkj ;kse vkdfLed vodk’k ij jokuk gksdj ckn vodk’k lekfIr ds fu;e fnukad 29-10-2000 dks iwokZUg~ esa vius drZO; ij mifLFkr u gksdj yxkrkj 35 fnu dk vukf/k—r vuqifLFkr jgdj fnukad 3-12-2000 dks iwoZUg~ esa vius drZO; ij mifLFkr gksukA 2- vuqifLFkr vof/k ds laca/k esa izLrqr fpfdRlk izek.k i= esa vksogj jk;fVax dj ml ij vafdr fnukad 7-11-2000 dh 2-11-2000 ys[kk djus dk iz;kl dj vfHkys[k esa gsjk&Qsjh djuk rFkk bl izdkj dk —R; dj foHkkx dks /kks[kk nsuk ,oa vius vkidks folcy dh lsok ds v;ksX; lkfcr djukA 3. On bare perusal of the aforesaid charges, it is clear that the first charge pertains to remaining unauthorizedly abasent for 35 days and the second charge is in regard of overwriting and interpolation in the medicl certificate submitted by the appellant to justify his absence. The enquiry officer in his report dated 30-4-2002 found that both the charges are proved, the disciplinary authority accepted the enquiry officer’s report and after giving opportunity of hearing to the appellant infilected the punishment of removal from services vide order dated 17.5.2012. The appellate authority upheld the order of the disciplinary authority by dismissing the appeal on 15.9.2002. The mercy appeal which was submitted by the appellant was also rejected vide order dated 1.3.2003. 4. The appellate authority upheld the order of the disciplinary authority by dismissing the appeal on 15.9.2002. The mercy appeal which was submitted by the appellant was also rejected vide order dated 1.3.2003. 4. The orders passed by disciplinary authority, appellate authority and authority who rejected the mercy appeal were assailed by the appellant by filing a writ petition before this Court which has also been dismissed by the impugned order dated 20.9.2011. 5. In this manner, this appeal has been preferred by appellant assailing the impugned order dated 20.9.2011 passed by the learned Writ Court. 6. Learned counsel for the appellant has raised following arguments before us: (i) The appellant was not unauthorizedly absent rather he was undergoing treatment with effect from 25.10.2000 to 2.12.2000 and was under treatment of Dr. A.W.Khan, a registered medical practitioner for aperiod from 25.10.2000 to 6.11.2000 and from 7.11.2000 to 2.12.2000 he was undergoing treatment at J.A. Group of Hospitals (Govt. Hospital affiliated by Meical College), and therefore, he was not willfully absent from the duty and not unauthorizedly absent from the duty; (ii) so far as framing of second charge is concerned, learned counsel submits that no useful purpose would served to benefit the appellant even if it is held that by changing date 7th November, 2000 to 2nd November, 2000 because on the document, Annexure P/6 at several places date 7th November, 2000 has been mentioned and this cannot be done by the appellant for the simple reason that by interpolating the date from 7.11.2000 to 2.11.2000 the appellant would not gain in any manner; and (iii) while imposing the harsh punishment order of removal from services, the authorities have taken into account the past service record of the appellant, but no charge thereto was framed, and therefore, such an action of the authorities is wholly arbitrary and deserves to be quashed. In support of his contention learned counsel has placed reliance on the decision of the Supreme Court Surendra Prasad Shukla vs. State of Jharkhand and others, ¼2011½8 SCC 536. 7. On the other hand, Shri Raghvendra Dixit, learned Govt. Advocate argued in support of the impugned order dated 20.9.2011 passed by the learned Writ Court and has contended that the appellant/petitioner being a member of Armed Fomed was suppose to maintain the discipline and the dignity of the department. 7. On the other hand, Shri Raghvendra Dixit, learned Govt. Advocate argued in support of the impugned order dated 20.9.2011 passed by the learned Writ Court and has contended that the appellant/petitioner being a member of Armed Fomed was suppose to maintain the discipline and the dignity of the department. The services ot the appellant are to save lives and to maintain the discipline in the public at large, and therefore, if the appellant himself by crossing the limits of dignity and discipline which is paramount consideration for a member of the Armed Force, the punishment of removal from services awarded to him cannot be said to be excessive or shockingly disproportionate. In support of his contention learned Govt. Advocate has placed heavy reliance on the judgment of the Supreme Court Union of India and others vs. Datta Linga Toshatwad, (2005) 13 SCC 709 . 8. Having heard learned counsel for the parties we are of the view that this appeal deserves to be dismissed. Regarding argument No.(i) 9. The appellant was availing the sanctioned leave from 24.10.2000 to 28.10.2000, and therfore. he was required to resume the duties on 29.10.2000, but admittedly he did not resume it. According to the appellant he was throughout ill from 25.10.2000 to 2.12.2000, and therefore, he was unable to attend the duties. This fact was taken into account at length by the disciplinary authority in its order dated 17.5.2002, which was filed in the learned Writ Court as Annexure P/4. On bare perusal of internet page 2 of the said order it is found that the stand of appellant is that he sustained some injuries on his shoulder, and therefore, he was unable to resume his duties. According to us, he could undergo treatment while on duty in the Company. Further by paying heed to the medical certificates which were filed, it was found by the disciplinary authority that the injury was not such grievous in nature, that while attending the duty the appellant could not undergo for the treatment. Admittedly, the appellant did not send any application to extend his leave. According to us, it was incumbent upon him to sent at least an application for extending the leave if he was ill. Admittedly, the appellant did not send any application to extend his leave. According to us, it was incumbent upon him to sent at least an application for extending the leave if he was ill. A pure finding of fact has been arrived at by the disciplinary authority that under the false pretext of ailment, the appellant before availing the leave of four days kept in mind that he will continue to remain on leave, and therefore, according to us, for this reason deliberately he did not send any application for extension of leave. 10. One important fact which cannot be marginalized and blinked away is that although several documents in regard to be the ailment has been submitted by the appellant, but there is not even a single document nor it is a case of the appellant that illness was so serious that he was admitted in the hospital, and therefore, he was unable to attend the duty. On the contrary, it is gathered from the record and he material which was placed before the enquiry officer in the departmental enquiry that all he the certificates submitted by the appellant were as outdoor patient, and therefore, it can be inferred that appellant was never admitted in the hospital. 11. The disciplinary authority as well as appellate authority have taken into account each and every aspect of the matter. Indeed, the appellant did not adduce any evidence in the departmental enquiry in rebuttal,thus the findings of the enquiry officer which was accepted by disciplinary authority by recording separate cogent reasons that the charge no.1 is proved against the appellant and according to us, the disciplinary authority as well as the appellate authority rightly passed the order of removal from services. 12. Looking to the limited jurisdiction under Article 226 of the Constitution of India, umpteen reasons by citing the case laws have been assigned by the learned Writ Court holding that the appellant being a member of Armed Force was suppose to discharge the duties in disciplined manner, and therefore, upheld the order of removal from services. We do not find any error in the order of learned Writ Court. Regarding argument no.(ii) 13. We do not find any error in the order of learned Writ Court. Regarding argument no.(ii) 13. The contention of learned counsel for the appellant is that no gainful purpose would be served to the appellant by manipulating the medical certificate and by interpolating the date from 7.11.2000 by overwriting the figure “7” to figure “2”, therefore, the charge which was framed was flimsy and by such overwriting the appellant was not gaining anything, and therefore, on this ground the extreme punishment of removal from services could not have been passed. On bare perusal of the medical certificate, which was filed as Annexure P/6, it is gathered that at one place there is interpolation on the date “7” this figure is changed to “2”, however, at several places the figure “7” is mentioned. The disciplinary authority has taken into account this aspect of the matter also. As a matter of fact the Ward-boy of J.A. Group of Hospitals where the appellant was being treated as an outdoor patient was examined and on the basis of the departmental record it was submitted that said certificate Annexure P/6 was never issued on 2.11.2000. Thus, for the reason best known to the appelant we do not know why he interpolated the date in the medical certificate at one place. This charge was also found to be proved and the disciplinary authority has assigned cogent reasons in that regard while holding that the charge is proved. The learned Writ Court has also taken into account this aspect of the matter and has given the finding that this charge was also proved. Regarding argument no. (iii) 14. By placing reliance on the decision of the Supreme Court in Surendra Prasad Shukla (supra), it has been contended by learned counsel that the punishment is shockingly disproportionate. On going through the aforesaid decision this Court finds that the punishment of removal from services was modified to compulsory retirement. However, looking to the seriousness to the charges of this case firstly deliberately the appellant remained unauthorizedly absent for a period of 35 days and secondly to justify his absence, he manipulated the government medical, in these circumstances, according to us, the punishment of removal from services cannot be said to be disproportionate. Shri Raghvendra Dixit, learned Govt. However, looking to the seriousness to the charges of this case firstly deliberately the appellant remained unauthorizedly absent for a period of 35 days and secondly to justify his absence, he manipulated the government medical, in these circumstances, according to us, the punishment of removal from services cannot be said to be disproportionate. Shri Raghvendra Dixit, learned Govt. Advocate has rightly placed reliance on the dicision of Supreme court in Datta Linga Toshatwad (supra),wherein in has been held that member of a uniformend force who overstays his leave by a few days must be able to give a satisfactory explanation. However, member of a force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserted. The Supreme Court held that in these type of cases dismissal of services from the force is a justified disciplinary action and cannot be described to be disproportionate misconduct. On this point we may also profitably placed reliance on certain more decision of the Supreme Court Director General, RPF and others vs. Ch. Sai Babu (2003) 4 SCC 331 and Mithilesh Singh vs. Union of India and others, (2003) 3 SCC 309 . 15. Resultantly, we do not find any ground to interfere in the order passed by learned Writ Court which is well considered. Looking to the limited jurisdiction under Article 226 of the Constitution of India, according to us, the learned Writ Court rightly declined to interfere in the order passed by the disciplinary authority and the appellate authority on merits as well as on the quantum of punishment. 16. This appeal fails and is hereby dismissed. No costs.