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2013 DIGILAW 705 (PAT)

Jitendra Pathak v. Union of India

2013-06-26

RAKESH KUMAR

body2013
ORDER Heard Sri Jai Shankar Pathak, learned counsel for the petitioner and Mr. N.A.Shamsi, learned Assistant Solicitor General appearing on behalf of Respondent/Union of India. 2. The petitioner was enrolled as constable in Indo-Tibatian Border Police Force and on 03.09.2003 he was referred to Jaliawala Bag Memorial Hospital, Amritsar for his treatment, but instead of being examined in the hospital, he absented himself. Subsequently, in view of the fact that without any authorization, he remained absent for several dates, an enquiry was conducted, in which witnesses were also examined and, thereafter, he was declared deserter by order dated 31.10.2003, which has been annexed as Annexure-3 to the writ petition. Since even thereafter, he did not report to his unit, an information was given to the native place of the petitioner and the same was also got published in the two daily newspapers, which were published in the district of Jalandhar and finally by order dated 08.03.2004, he was dismissed from service by order of Respondent no.4/ Commandant, 25th Batalian Indo- Tibetan Border Police Force vide Annexure-2 to the writ petition. 3. Learned counsel for the petitioner submits that since the petitioner was suffering from mental ailment, he was being examined by Psychiatrist at Ranchi and he was under treatment of a Medical Officer from 7.11.2003 to 02.07.2005. Learned counsel for the petitioner has referred to Annexures 1 series to the writ petition, which are prescriptions/ certificate of one Psychiatrist of Ranchi. He submits that due to the said reason, which was beyond the control of the petitioner, he remained absent from his duty and, as such, sympathetic approach may be adopted in the present case and order of dismissal as well as order, whereby the petitioner was declared deserter may be set aside. He has argued that the orders impugned are in gross contravention of the principles of natural justice and, as such, the writ petition may be allowed. Sri Jai Shankar Pathak, learned counsel for the petitioner has also relied upon a Judgment of the Apex Court, reported in 2004(2) PLJR, 208: Shri Bhagwan Lal Arya vs. Commissioner of Police, Delhi & Ors. The Judgment referred by the learned counsel for the petitioner appears to be not applicable in peculiar facts and circumstances of the present case. In this case, when the petitioner remained absent unauthorisedly, he was declared deserter that too after enquiry. The Judgment referred by the learned counsel for the petitioner appears to be not applicable in peculiar facts and circumstances of the present case. In this case, when the petitioner remained absent unauthorisedly, he was declared deserter that too after enquiry. Even thereafter, no step was taken on the part of the petitioner to approach the authority concerned and, finally, dismissal order was passed by Respondent no.4. The petitioner had initially complained for ailment of piles, whereas while approaching this Court, the petitioner has taken entirely different stand that he was suffering from mental ailment. Had it been a case of mental ailment, the petitioner would have been admitted in the Government Hospital but instead he has placed prescription and certificate of a doctor, not issued from the government hospital. 4. Mr. N.A. Shamsi, learned Assistant Solicitor General has vehemently opposed the prayer of the petitioner. He submits that the plea, which has been taken before this court that he was mentally sick, appears to be not sustainable in the eye of law due to the simple reason that initially in the year 2003, he was referred for treatment of ailment of piles, whereas the certificate, which has been brought on record, shows that he was being treated by psychiatrist. He further submits that deserter order was passed in the year, 2003 and finally, he was removed from service in the month of March, 2004. Even the certificate given by the doctor, if for the time being it is accepted as true, suggests that the petitioner was fit on 02.07.2005. However, the petitioner without availing the remedy available under the rules for filing appeal, he approached this Court after long delay. The present writ petition was filed in the year 2007 itself. He submits that the conduct of the petitioner suggests that the petitioner even does not deserve any sympathy from this Court. Learned Assistant Solicitor General has also referred to the averments made in the counter affidavit, which has been filed in detailed along with number of documents. 5. Fact remains that the petitioner was dismissed from service in the month of March, 2004. From the counter affidavit, it is also evident that communications were made to the native place of the petitioner. 5. Fact remains that the petitioner was dismissed from service in the month of March, 2004. From the counter affidavit, it is also evident that communications were made to the native place of the petitioner. The certificate of Medical Officer at Page 19 of the writ petition makes it clear that at least on 02.07.2005 he was found fit and even thereafter he did not bother to approach the authority concerned either by way of filing appeal or by filing representation for sympathetic approach. The petitioner in a callous manner after lapse of several years from the order of dismissal approached this Court in the month of April, 2007. 6. From the order impugned, the Court is satisfied that no illegality or irregularity was committed by the authority concerned. Moreover, the conduct of the petitioner also does not warrant any sympathy from this Court. 7. Accordingly, the writ petition stands dismissed.