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2014 DIGILAW 1016 (GAU)

Mantu Boro v. Union of India

2014-11-24

B.K.SHARMA

body2014
JUDGMENT : 1. The challenge in this writ petition is the Annexures 3 and 5 orders dated 8th August, 2008 and 15th December, 2008, by which the services of the petitioner as Constable in the Central Reserve Police Force (‘CRPF’) was terminated and the departmental appeal against the same was rejected. Prior to filing of this writ petition, the petitioner had filed 3 more writ petitions earlier, namely, WP(C) No. 2262/2009; WP(C) No. 2409/2011 and WP(C) No. 3138/2011, making the same grievance. However, all the writ petitions have been withdrawn as stated in paragraphs 22 and 23 of the writ petition, which were quoted below: “(22) That it is respectfully submitted that the petitioner again filed a writ petition being WP(C) No. 2409/2011 challenging the order of termination dated 7.9.2008 and the same was listed for motion hearing on 11.5.2011 and after hearing it was detected that the impugned order dated 7.9.2008 was only challenged, but two other impugned orders, namely, dated 8.8.2008 and 15.12.2008 issued by the respondent No. 3 were by mistake not challenged and for the said mistake of learned counsel the case had to be withdrawn and accordingly the writ petition was withdrawn with a liberty to file a fresh case, if so advised. (23) That as per the advise of the learned counsel the petitioner has again requested the learned counsel to file a fresh writ petition challenging the impugned orders and a fresh writ petition was filed which was numbered as WP(C) No. 3138/2011 and this time also on the date of motion hearing on 20.6.2011 it was found that the learned counsel has forgotten to challenge the impugned orders dated 15.12.2008 and 7.9.2008, which have been reflected from the affidavit-in-opposition and as such the learned counsel who was conducting the case of this petitioner has been compelled to withdraw the writ petition with liberty granted to the petitioner to approach the court with appropriate application in future if so advised.” 2. Coming to the facts of the case, as stated in the writ petition, the petitioner had undergone 22 weeks basic training after he was appointed as Constable in the CRPF. He was posted under the Commandant, 192 Battalion, CRPF, Ajmer, Rajasthan. He was granted 15 days mid-term break from 25th May, 2008 to 8th June, 2008, during which time, he visited his native place. He was posted under the Commandant, 192 Battalion, CRPF, Ajmer, Rajasthan. He was granted 15 days mid-term break from 25th May, 2008 to 8th June, 2008, during which time, he visited his native place. According to the petitioner, after coming to his native place, he suffered from fever and Jaundice and was admitted in a Nursing Home, namely, Medicure Home, at Nalbari on 9th June, 2008. Referring to the Annexure-1 medical certificate, it is the case of the petitioner that he was in the Nursing Home from 9th June, 2008 to 12th June, 2008. 3. According to the petitioner, he had sent a letter on 10th June, 2008 to the respondent No. 6 informing about his illness and also praying for extension of leave for 15 days on medical ground. As admitted by the petitioner in paragraph 4 of the writ petition, he could not report for duty in time and it was only on 10th August, 2008, he had reported for duty only to be informed that a couple of days before, a termination noticed was sent to his home address. He was also not allowed to rejoin duty. It is the specific case of the petitioner that in such a situation, he had to stay at the Camp (Ajmer) for 1 month without assignment of any duty. 4. It is the further case of the petitioner that on 17th August, 2008, the petitioner again visited his Office at Ajmer requesting to furnish him with the copy of the termination notice and accordingly, he was furnished with the same. According to the petitioner, he could come to know about the said termination notice issued on 8th August, 2008 by the respondent No. 6 under rule 5(1) of the Central Civil Services (Temporary Sendee) Rules, 1965 (‘1965 Rules’), read with Note (2) below item 16 of Appendix-F to Central Reserve Police Force Rules, 1955. As was indicated in the notice of termination, the petitioner was provided with 1 month's notice with the intimation that on expiry of the said period from 8th August, 2008, his services would stand terminated. 5. As was indicated in the notice of termination, the petitioner was provided with 1 month's notice with the intimation that on expiry of the said period from 8th August, 2008, his services would stand terminated. 5. It is in the aforesaid facts and circumstances, the petitioner has again filed the instant writ petition questioning the termination of his services on the ground that the aforesaid provisions of the Rules are not applicable to him and that before termination of his services, he ought to have been provided with a reasonable opportunity of being heard. It is the further case of the petitioner that since he was seriously lying ill and consequently could not report for duty, the said aspect of the matter ought to have been considered by the respondents before taking the drastic action of termination of service. 6. The respondents have contested the writ petition by filing counteraffidavit, in which it has been stated that the petitioner on completion of 22 weeks basic training went on leave for 15 days (mid-term break) from 25th May, 2008 to 8th June, 2008. However, when the petitioner did not report back for duty he was directed to report back vide letters dated 13th June, 2008 and 17th July, 2008. Prior to that, the petitioner had sent an application on 10th June, 2008 praying for extension of leave enclosing therewith a medical certificate dated 3rd June, 2008. The certificate was issued by a private practitioner, namely, Dr. Diganta Kr. Boro, which neither contained any reference of pathological test nor any advice for rest. In this connection, the respondents have referred to CCS (Medical Attendance) Rules, 1944 and also the provisions of the CRPF Medical Manual, 1988. 7. Apart from the aforesaid direction to report back to duty vide communications dated 13th June, 2008 and 17th July, 2008, the petitioner was also directed to rejoin duty/training vide letter dated 20th June, 2008 with the stipulation that upon failure to do so, consequence, i.e., termination of service would follow. In spite of the aforesaid communications, the petitioner did not respond to the same, but reported to the Unit only on 10th August, 2008. However, before that the termination notice dated 8th August, 2008 was issued to him under the aforesaid provisions of the 1965 Rules. In spite of the aforesaid communications, the petitioner did not respond to the same, but reported to the Unit only on 10th August, 2008. However, before that the termination notice dated 8th August, 2008 was issued to him under the aforesaid provisions of the 1965 Rules. Being aggrieved by the said order of termination, the petitioner preferred an appeal before the Inspector General of Police, however, the appeal was rejected vide order dated 15th December, 2008. 8. As stated in the counter-affidavit, the petitioner vide his application dated 10th June, 2008 had intimated the authority about his purported suffering from Malaria and Jaundice and prayed for some more days leave (no specification). It is the specific plea of the respondents in reference to Annexure-1 certificate annexed to the writ petition that the petitioner never submitted the same to the authority. In paragraph 7 of the counter-affidavit, the respondents in reference to said Annexure-1 medical certificate dated 12th August, 2008 has stated that the same is an afterthought inasmuch as the petitioner was at Ajmer on 10th August, 2008 but on the other hand, the said certificate was issued on 12th August, 2008. In a nutshell the plea of the respondents is that since the petitioner remained unauthorizedly absent from training/duty, his service was dispensed with invoking the provisions of the 1965 Rules, referred to above. 9. Mr. R.C. Saikia, learned senior counsel along with Ms. Kakali Saikia, learned counsel appearing on behalf of the petitioner strenuously argued that since the petitioner is suffering from serious illness and had also reported for duty with due intimation to the authority about his illness, his service could not have been terminated invoking the provisions of the aforesaid Rules and that too in gross violation of the principles of natural justice. He has placed reliance on certain decisions, which are Dev Raj v. Union of India, AIR 1966 HP 13 ; Damomal Kausomal Raisinghani v. Union of India, AIR 1967 Bom. 355 ; Industrial Fuel Marketing Co. v. Union of India, AIR 1983 Cal. 253 and Union of India v. Giriraj Sharma, 1994 Supp (3) SCC 755 : AIR 1994 SC 215 . 10. Countering the above argument, Mr. 355 ; Industrial Fuel Marketing Co. v. Union of India, AIR 1983 Cal. 253 and Union of India v. Giriraj Sharma, 1994 Supp (3) SCC 755 : AIR 1994 SC 215 . 10. Countering the above argument, Mr. M. Bhagabati, learned Central Government counsel submitted that the conduct of the petitioner while in training/duty with a disciplined force was not at all satisfactory and accordingly, the authority had to dispense with his services invoking the provisions of the aforesaid Rules. He further submitted that the petitioner having taken recourse to falsehood in respect of the medical certificates, on that score alone the writ petition is liable to be dismissed. He also placed reliance on the decisions of the Apex Court in Om Prakash v. State of Punjab, (2011) 14 SCC 682 and Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 . 11. I have considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. Before arriving at a finding on the basis of the materials available on record, the decisions on which the learned counsel appearing for the parties are referred to and discussed. 12. In Giriraj Sharma (supra), the Apex Court held that overstaying leave for a period of 12 days ought not to have entailed the harsh punishment of dismissal from service. In the said case, the incumbent had admitted the fact that he had overstayed the period of leave and explained the circumstances in which it was inevitable for him to continue on leave. It was in such circumstances, the Apex Court exercising its power and jurisdiction held that the penalty of dismissal from service was harsh. In Dev Raj (supra), the learned Single Judge of the Himachal Pradesh High Court was inclined to set aside and quash the order of penalty when there was procedural irregularity in conducting the same. This case is not at all applicable to the facts and circumstances of the present case. This case has also been relied upon to counter the argument that this court has no territorial jurisdiction to entertain the writ petition inasmuch as the cause of action wholly arose at Ajmer in the State of Rajasthan. The decision in Damomal Kausomal Raisinghani (supra) also relates to territorial jurisdiction. In Industrial Fuel Marketing Co. This case has also been relied upon to counter the argument that this court has no territorial jurisdiction to entertain the writ petition inasmuch as the cause of action wholly arose at Ajmer in the State of Rajasthan. The decision in Damomal Kausomal Raisinghani (supra) also relates to territorial jurisdiction. In Industrial Fuel Marketing Co. (supra) also, the decision was rendered in respect of territorial jurisdiction. All these decisions have been referred to, to counter the argument that this court lacks territorial jurisdiction to entertain the writ petition. However, this aspect of the matter need not detain us as the question relating to territorial jurisdiction was not seriously argued by the learned Central Government counsel. 13. The decisions on which the learned Central Government counsel has relied upon are that of Om Prakash (supra) and T.T. Murali Babu (supra). In Om Prakash (supra), the Apex Court dealing with the failure on the part of the delinquent to report for duty and remaining absent on leave held that dismissal from service was not disproportionate. Similar view has also been expressed in T.T. Murali Babu (supra). However, in the present proceeding, we are concerned with dispensation of the services of the petitioner under the provisions of the 1965 Rules and not pursuant to any departmental proceeding. 14. Coming to the case in hand, the admitted position is that by now more than 6 years have gone by since the service of the petitioner was dispensed with. It is also an admitted fact that earlier the petitioner had filed 3 writ petitions one after another and all were withdrawn, of course with the liberty to approach again, for the reasons noted above. Further admitted fact is that the petitioner as per his own admission had availed 15 days mid-term break while undergoing 22 weeks basic training from 25th May, 2008 to 8th June, 2008. However, when he did not report back for training/duty, he was thrice requested to report for duty vide communications dated 13th June, 2008; 20th June, 2008 and 17th July, 2008, but admittedly he did not respond to the same. In paragraph 4 of the writ petition, the petitioner has admitted that he did not report for duty on expiry of the leave. 15. In paragraph 4 of the writ petition, the petitioner has admitted that he did not report for duty on expiry of the leave. 15. The petitioner has placed heavy reliance on the Annexure-1 medical certificate dated 12th August, 2008 issued by the Doctor of a private nursing home certifying his purported treatment therein for the period from 9th June, 2008 to 12th June, 2008 (date of discharge). While issuing the certificate on 12th August, 2008, it was also recorded, thus: “By today he has been found fit and, hence, he has been advised to join his duty with immediate effect.” 16. If we go by the above certification, the petitioner had appeared before the Doctor on 12th August, 2008, although the fact of the matter, as per the own admission of the petitioner is that he had reported for duty at Ajmer, Rajasthan on 10th August, 2008 and remained there for 1 month. If that be so, he could not have appeared before the Doctor of the private nursing home on 12th August, 2008 at Nalbari (Assam). However, the certificate certifies that he was again examined on 12th August, 2008 at Nalbari and was found fit. Being confronted with this situation, the learned counsel for the petitioner tried to meet the same stating that the certificate was produced at a later point of time and not on 10th August, 2008. This submission cannot justify the recourse to falsehood inasmuch as the petitioner being not present at Nalbari on 12th August, 2008, could not have been medically examined on that day so as to certify that he was found medically fit. 17. The above aspect of the matter has been highlighted in paragraph 7 of the counter-affidavit, which is quoted below: “7. That as regards the statements made in paragraph No. 4, this deponent begs to state that Dr. S.A. Ahmed had issued the fitness certificate on 12.8.2008 whereas the petitioner had reported on duty on 10.8.2008. This anomaly in dates pertaining in his Fitness Certificate and date of reporting on duty clearly indicates that the Doctor/Physician has issued a false certificate or the certificate itself is fake. Moreover, on 10.8.2008 the petitioner was in Ajmer (at Unit). Than how was his medical certificate issued in Nalbari, Assam on 12.8.2008. This anomaly in dates pertaining in his Fitness Certificate and date of reporting on duty clearly indicates that the Doctor/Physician has issued a false certificate or the certificate itself is fake. Moreover, on 10.8.2008 the petitioner was in Ajmer (at Unit). Than how was his medical certificate issued in Nalbari, Assam on 12.8.2008. Furthermore, although the petitioner, in his earlier Leave Application dated 10.6.2008 had stated that he was suffering from Malaria and Jaundice, in his Fitness Certificate dated 12.8.2008 his sickness is stated to be Malaria and Enteric Fever. Herein it is also worth mentioning that in paragraph 9 of this instant Writ Application, the petitioner himself has stated that he stayed at his camp in Ajmer from 10.8.2008 to 1.9.2008. These facts clearly indicates that the petitioner has taken refuge of falsehood to defraud the respondent-authorities as well as to mislead this hon'ble Court. Infact no Fitness Certificate was ever placed before the respondent-authorities by the petitioner. As such this Writ Application is liable to be dismissed with cost for placing misleading and false facts.” 18. The dubious method adopted by the petitioner is also discernible from the fact that the petitioner along with the departmental appeal preferred before the appellate authority had submitted another medical certificate issued by one Dr. Diganta Kr. Boro, stating therein that he was under his treatment with effect from 3rd June, 2008 to 24th July, 2008 for Malaria and enteric fever and that he had been advised rest for 5 days with effect from 24th July, 2008. If the petitioner was under the treatment of another Doctor, namely, Dr. Diganta Kr. Boro, for the period from 3rd June, 2008 to 24th July, 2008, it is not understood as to how he could be in a private nursing home during the period from 9th June, 2008 to 12th July, 2008. Thus, both the certificates issued by 2 different medical practitioners run counter to each other and clearly depicts recourse to falsehood adopted by the petitioner. 19. Thus, both the certificates issued by 2 different medical practitioners run counter to each other and clearly depicts recourse to falsehood adopted by the petitioner. 19. As regards the plea of the learned counsel for the petitioner that before terminating his services, he ought to have been issued with notice, the same is totally misconceived inasmuch as the services of the petitioner was terminated invoking the provisions of the rule 5(1) of the 1965 Rules, as per requirement of which the services of a temporary Government servant shall be liable to terminate at any time by a notice in writing, period of which shall be of 1 month. As noted above, the petitioner was on training during which he availed of 15 days mid-term break from 25th May, 2008 to 8th June, 2008. Coming to the native place, he had purportedly fallen sick, however, he did not respond to the 3 notices issued to him requiring him to report for duty immediately. It was only on 10th August, 2008, he reported to the Unit but before that the termination notice was issued. The fact that the petitioner had initially submitted another medical certificate obtained from Dr. Diganta Kr. Boro does not find mention in the writ petition and the whole basis of the claim of the petitioner regarding his illness is the aforementioned Annexure-I certificate dated 12th August, 2008. However, the fact of submitting another certificate from Dr. Diganta Kr. Boro is revealed in the counter-affidavit filed by the respondents, in which in paragraph 3 it has been specifically stated that the petitioner had submitted the said certificate obtained from Dr. Boro. 20. From the above narration of facts, what has emerged is that although the petitioner was at Ajmer, Rajasthan on 12th August, 2008 but on the other hand, the Annexure-I certificate dated 12th August, 2008 shows his presence at Nalbari and that he was medically examined on that day and was found fit. The petitioner could not have been at both the places on 12th August, 2008. Thus, admittedly the petitioner took recourse to falsehood in obtaining the medical certificate dated 12th August, 2008. This is coupled with the aforesaid fact that the petitioner had earlier submitted another certificate obtained from Dr. Diganta Kr. Boro certifying that he was under his treatment for the period from 3rd June, 2008 to 24th July, 2008. Thus, admittedly the petitioner took recourse to falsehood in obtaining the medical certificate dated 12th August, 2008. This is coupled with the aforesaid fact that the petitioner had earlier submitted another certificate obtained from Dr. Diganta Kr. Boro certifying that he was under his treatment for the period from 3rd June, 2008 to 24th July, 2008. If during this period, he was under the treatment of the said Doctor, it is not understood as to how he could have been in a private nursing home for the period from 9th June, 2008 to 12th June, 2008. 21. Unauthorised absence from duty by the member of the disciplined force has always been viewed seriously. In Union of India v. Mithilesh Singh, 2000 (3) GLT 62, the Division Bench of this court while setting aside the order of the learned Single Judge interfering with the order of removal from services imposed on the incumbent when he remained absent from duty unauthorizedly, directed the respondents Railways to impose any other punishment other than dismissal, removal, etc., from services, held that unauthorised absence from service cannot be viewed lightly and that the competent authority is within its jurisdiction and authority to impose the penalty of removal from service. The said decision was carried on appeal before the Apex Court and the Apex Court vide its judgment in Mithilesh Singh v. Union of India, (2003) 3 SCC 309 upheld the Division Bench judgment. In State of Punjab v. Charanjit Singh, (2003) 8 SCC 458 , the Apex Court upheld the order of dismissal when the respondent was found absent unauthorisedly even during the period of suspension. 22. In the instant case, the petitioner remained absent unauthorizedly and did not respond to the notices issued to him. He was at the threshold of the service career and was undergoing training. He availed of 15 days mid-term break and thereafter, did not report for duty. It was only on 10th August, 2008 he had visited the Unit but in view of the termination notice already issued to him, he was not allowed to resume duty. As to how the petitioner tried to project his case of illness, during the period in question has been noted above. Admittedly, he took recourse to falsehood. It was only on 10th August, 2008 he had visited the Unit but in view of the termination notice already issued to him, he was not allowed to resume duty. As to how the petitioner tried to project his case of illness, during the period in question has been noted above. Admittedly, he took recourse to falsehood. If the authority empowered under the provisions of the Rules had dispensed with his services by a non-stigmatic order and by way of a termination simpliciter, no fault can be attributed. 23. Above being the position, I find no merit in the writ petition and accordingly, it is dismissed without, however, any order as to costs.