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2014 DIGILAW 545 (PAT)

Shamshad Ali Khan v. State of Bihar

2014-05-02

JAYANANDAN SINGH

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JUDGMENT : JAYANANDAN SINGH, J.:–After going through the punishment order, as contained in Annexure-10, this Court finds that the reliance placed by learned senior counsel for the petitioner on the order dated 24.09.1999 passed in CWJC No.5723 of 1998 is misconceived. In the said order, a Bench of this Court, placing reliance on an earlier case of unauthorized absence of 195 days resulting into punishment having been interfered with by the Court on quantum of punishment, disposed of the writ application remitting the matter back to the respondents to consider the case of petitioner of the case also on the question of quantum of punishment, as he had been dismissed from service on account of absence for 220 days. 2. In the present case, the order of dismissal of the DIG dated 6.10.1994 gives the entire detail of the conduct of petitioner. From this order it appears that, while the petitioner was on 14 days leave with effect from 27.3.1992, he was transferred from Darbhanga to Simdega on 10.4.1992. On the expiry of leave of 14 days, petitioner was supposed to join on 11.4.1992, but apparently coming to know about his transfer, he did not submit his joining and extended his leave on the pretext of being ill. With his show cause to the charges, he produced a medical certificate of one Dr.M.M.Alam. In the enquiry it was found that earlier also petitioner had produced one medical certificate of the same doctor dated 15.6.1991, with comparison with which, the handwritings in the certificate of Dr.M.M.Alam enclosed with the show cause were found to be different. The petitioner had produced the certificate dated 1.1.1992 certifying him fit for duty, but still he did not join and in the show cause he claimed that from the night of 2.9.1992 he again fell ill and, therefore, remained absent. After a long gap, he produced another certificate dated 8.3.1993 in which also he was certified to be fit for duty, but he did not submit his joining at the transferred place at Simdega and submitted his joining at Darbhanga on 9.2.1993. Admittedly, he remained there for sometime. Learned senior counsel for the petitioner submits that he continued there since his application for cancellation of his transfer was being processed. Admittedly, he remained there for sometime. Learned senior counsel for the petitioner submits that he continued there since his application for cancellation of his transfer was being processed. However, it is an admitted fact that from Darbhanga he was relieved on 31.5.1993, but thereafter also he remained absent and submitted his joining in Simdega as late as on 3.2.1994. But he did not continue there and again, with an excuse of illness, he absented himself. In the circumstances, he was put under suspension and proceeded against departmentally. 3. From the order of the disciplinary authority it appears that during the proceeding he also produced two certificates of two doctors, but it was found that handwriting of both the certificates were same. Hence, the disciplinary authority found that apparently petitioner has been producing false medical certificates in his defence. In the circumstances, he found it a gross case of indiscipline and passed orders for dismissal of petitioner. 4. Learned senior counsel for the petitioner submits that petitioner was suffering from serious ailments and he was under treatment at Darbhanga and hence his transfer to remote place like Simdega would have hampered treatment being received by him at Darbhanga. Hence, he was appealing to the authorities for stay of his transfer which was being considered. Hence, he was waiting for the same. 5. In case of grave personal difficulty any government employee has liberty to apply for being placed at a convenient place of posting, but for this employee is not expected to completely disregard the orders for years together and absent himself from duty by producing false medical certificates. If the petitioner was having some serious ailments and he was under treatment at Darbhanga, he was expected to produce his all the prescriptions of treatment being received at Darbhanga before his transfer. There is nothing on record nor learned senior counsel for the petitioner has pointed out that the petitioner had produced prescriptions of doctors of Darbhanga under whose treatment he was at the place from before. Had those certificates been produced on the record of this case and would have satisfied this Court prima facie that the petitioner was suffering from serious ailments and, therefore, he was making attempts for his stay at Darbhanga, this Court might have considered the punishment awarded to the petitioner as disproportionate. Had those certificates been produced on the record of this case and would have satisfied this Court prima facie that the petitioner was suffering from serious ailments and, therefore, he was making attempts for his stay at Darbhanga, this Court might have considered the punishment awarded to the petitioner as disproportionate. But there is nothing on record to arouse this Court conscience in favour of the petitioner. The certificates produced by the petitioner were of later date and were only the fitness certificates which were also prima facie found to be fabricated. Even if the petitioner was attempting to get his transfer stayed for almost one year and he submitted his joining in Darbhanga itself after one year on 9.2.1993 he was finally relieved from Darbhanga with effect from 31.5.1993. For one year he could not succeed in getting his transfer stayed and the authorities who were allegedly processing his application finally relieved him. Hence after 31.5.1993 there could be no conceivable reason for the petitioner not to have joined his post at Simdega immediately and to wait for another almost nine months. Even after joining at Simdega he absented himself and, except for filing show cause reply, it appears that he did not appear in the proceeding also. 6. In the circumstances, this Court does not find that the petitioner deserves any leniency by this Court to persuade it to remit the matter back to the authorities on the question of quantum of punishment. The appeal and memorial of the petitioner have been dismissed by reasoned orders. Therefore, so far findings of the facts are concerned, they stand finally concluded. 7. In the circumstances, this Court does not find any merit in the writ application and the same is dismissed. 8. Though there is no prayer in the writ application, but learned senior counsel for the petitioner submits that some amount of the petitioner towards salary or subsistence allowance is still due with the respondents. 9. Petitioner may represent for the same before the appropriate authority. ?