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2014 DIGILAW 462 (CHH)

Dudhnath v. State Of Chhattisgarh

2014-12-15

CHANDRA BHUSHAN BAJPAI, NAVIN SINHA

body2014
ORDER Navin Sinha, Actg. C.J. 1. Heard learned counsel for the petitioner and the respondents. 2. The present appeal arises from order dated 15.7.2014 dismissing WP(S) No. 4935/2005 declining to interfere with order of compulsory retirement dated 28.4.2001 of the appellant. 3. Learned counsel for the appellant submits that the appellant was appointed as Constable in the 11th Battalion, Special Armed Force, Bhilai on 10.12.82. On the date of the impugned order, he had completed only 18 1/2 years of service. Under Rule 42 of MP Civil Services (Pension) Rules, 1976 (hereinafter called 'the Rules'), adopted by the State of Chhattisgarh, the qualifying service for the respondents to compulsorily retire him in public interest was 25 years after giving three months notice or salary in lieu thereof. The impugned order was therefore illegal on the face of it. 4. It was next submitted that a bare reading of the impugned order makes it apparent that it has been passed as a punishment on the ground of alleged unauthorised absence for 273 days from 30.7.2000 to 28.4.2001. Under Rule 10(vii) of the MP Civil Services (CCA) Rules, 1966 (hereinafter called 'CCA Rules') adopted by State of Chhattisgarh compulsory retirement was a major penalty. Holding of a departmental proceedings was therefore mandatory and in absence of which the impugned order stands vitiated. Even under Rule 228 of the MP Police Regulation, adopted by State of Chhattisgarh, holding of departmental enquiry for compulsory retirement by way of punishment was mandatory. 5. The appellant had submitted leave application accompanied by medical certificates from the Medical Officer, District Hospital, Durg, with regard to his medical condition at each extension of leave. It cannot be said that he was absent without justification or information amounting to a deserter. Unless the genuineness of his leave application is disputed or the illness is denied by the respondents, it was mandatory for them to hold departmental proceedings. The request for grant of leave was never rejected. The respondents are obliged to take a decision on his applications for leave before visiting the appellant with any consequences. 6. Learned counsel for the State has supported the impugned order submitting that the appellant neither appeared before the medical board nor had he received the notices sent to him. The request for grant of leave was never rejected. The respondents are obliged to take a decision on his applications for leave before visiting the appellant with any consequences. 6. Learned counsel for the State has supported the impugned order submitting that the appellant neither appeared before the medical board nor had he received the notices sent to him. Earlier he had been placed under suspension and another departmental proceedings had been initiated for indisciplined conduct when he was found missing from night roll call on 03.12.99 and was indulging in activities reflecting indiscipline and attempt on his part to spread and promote rebellious attitude by instigating other Constables. He was also found misbehaving with senior officers. Departmental proceedings were pending in which also he was refusing to participate despite repeated opportunity as noticed in detail by learned Single Judge. It is submitted that in absence of any material on record, learned counsel for the State is unable to assist this Court on the submission made on behalf of the appellant that because of the impugned order for compulsory retirement, the earlier departmental proceeding has now been closed. If the appellant refused to participate and respond to the repeated notices sent to him for appearing before the medical board it constituted sufficient reason not to hold departmental proceedings under Article 311(2) proviso of the Constitution. 7. It was lastly submitted that the appellant was reinstated on revocation of earlier suspension order dated 25.7.2000. He started to take the defense of illness soon thereafter from 29.7.2000. The appellant was a member of a disciplined force as held by learned Single Judge and the Court in judicial review may restrain itself on aspects of enforcement of discipline in the force. 8. We have considered the submission on behalf of the parties. Undoubtedly, the petitioner was a member of a uniformed disciplined service. That will make the standards applicable to him different from civilian service and more strict, but it cannot be said that his rights must be sacrificed at the alter of discipline without going into the merits of the questions involved. 9. It is not in dispute that for certain acts of misconduct the appellant was earlier placed under suspension and was facing departmental proceedings in which he was not cooperating despite repeated opportunities. His suspension was revoked on 25.7.2000. 9. It is not in dispute that for certain acts of misconduct the appellant was earlier placed under suspension and was facing departmental proceedings in which he was not cooperating despite repeated opportunities. His suspension was revoked on 25.7.2000. He did not join duty thereafter and started submitting leave applications from 29.7.2000. We have gone through his leave applications which are more than 13 in number each accompanied by medical certificate of the Medical Officer, District Hospital Durg. His illness varies from enteric fever to relapse, from gastritis to PUO disease, hyper acidity, acid peptic syndrome, pain in abdomen, vertigo, operation of appendicitis, infective hepatitis, old hepatitis and appendicitis, hepatitis E and anxiety. We also find that there is a pattern in the leave applications submitted by him for specified durations when the next leave application again accompanied by a medical certificate comes in the nick of time before expiry of the previous leave application so as to give it continuity. 10. No material has been placed before us that he had submitted documentary evidence by way of his medical condition in the earlier departmental proceedings for his inability to participate on the ground of illness much less that he was bed ridden. The reliance on the respondent's letter dated 25.4.2001 in this regard to draw presumption in his favour does not appeal to us as the onus was on the appellant to demonstrate before us the nature of illness which may have kept him confined to bed unable to move around unable to participate in the departmental proceedings. The present illness noticed by was not of a nature to confine him on bed and neither was it his case. It was not his case that he was hospitalized throughout the period restrained and hindered from moving around. Twice on 13.12.2000 and 25.4.2001 he was asked to appear before the medical board in support of his plea of illness vacillating from his leave application dated 29.7.2000 to 14.8.2001, 13 in number, but he refused to participate for which no explanation has been placed before us. Submission of leave applications does not amount to sanction of leave automatically. The question also arises that if the appellant was so terminally ill was he in fit physical condition to perform arduous police duty in Special Armed Force with its own rigor as distinct from normal police duty. 11. Submission of leave applications does not amount to sanction of leave automatically. The question also arises that if the appellant was so terminally ill was he in fit physical condition to perform arduous police duty in Special Armed Force with its own rigor as distinct from normal police duty. 11. Having said so, the question still arises if the appellant could have been visited with the punishment for compulsory retirement if he had not completed 25 years of qualifying service. We find it difficult to uphold the impugned order on that ground. At this stage the question that it was innocuously worded or in the form of punishment or not and without holding departmental proceedings loose their relevance. 12. We are left with no option but to set aside the order dated 28.4.2001 in its present form. This however will not result in immediate reinstatement in service of the appellant with the right to resume duties. He shall stand reinstated under suspension. 13. The respondents are directed to take a fresh decision in accordance with law within a maximum period of four months from the date of receipt and production of a copy of this order before the concerned authority without being influenced by any observation in this order which is confined to the disposal of the present application only. If the appellant does not cooperate, it shall be open for the respondent to proceed ex-parte also so that fresh appropriate orders are passed within the time fixed by us. But in the event the respondent proceed ex-parte they shall be required to record reasons for doing so including the attempts made to persuade the appellant to participate notwithstanding which he refused to do so. 14. Nothing prevents the respondents by virtue of the present order from completing the earlier enquiry also if they so opine which is stated to have been closed with the order of compulsory retirement. 15. The appeal is allowed only to the extent indicated above. Appeal Partly Allowed.