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Madhya Pradesh High Court · body

2016 DIGILAW 862 (MP)

Prem Narayan Chaturvedi v. State of M. P.

2016-09-23

VIVEK AGARWAL

body2016
ORDER 1. Petitioner has filed this writ petition challenging the order passed by respondent No.3- Deputy Inspector General, SAF, Gwalior, dated 26.11.2005 vide which the appeal filed by the petitioner against the order of termination dated 15.9.1995 has been rejected. 2. The facts, which are not disputed, are that petitioner was recruited in the State Armed Forces as Constable on 5.3.1992. He was sent for training to APT, Indore, and during his stay at Indore he unauthorizedly absented himself from the training without seeking any permission or prior sanction of leave, as a result he was served with a show cause notice on 19.5.1995 and thereafter vide order dated 15.9.1995 his services were terminated. Petitioner had filed an appeal against the said order of termination which too was rejected vide order dated 20.6.1996 and thereafter he had filed one original application before the State Administrative Tribunal, Bench at Gwalior, which was transferred to the High Court on closure of the said Tribunal and was registered as Writ Petition No.3764/2003. This writ petition was decided vide order dated 26.4.2005 and this Court disposed of the writ petition without expressing any opinion on the merits of the case with a direction to the appellate authority to decide the appeal on merits in accordance with law after giving opportunity of hearing. In pursuance to the orders passed by this Court, petitioner was provided an opportunity of hearing and thereafter impugned order, Annexure P-1, dated 26th November, 2005 has been passed maintaining the order of punishment as was passed on 15.9.1995. Assailing these orders, present writ petition has been filed alleging that no enquiry was conducted, nor any opportunity of hearing was afforded to the petitioner, and therefore, the order suffers from the principles of violation of natural justice and deserves to be set aside and be set aside as such. 3. Respondents have filed a detailed return and they have categorically mentioned in their return that after his recruitment, the petitioner was sent for training at Jabalpur from where he had absented without any notice or application and had turned up after 79 days. This period of 79 days was treated as a period of absence without pay from the duty under the Leave Rules. This period of 79 days was treated as a period of absence without pay from the duty under the Leave Rules. Again on 5.8.1994 he was sent to M.P. Training Course, Indore, from where he absented from the duty w.e.f. 17.5.1995 without any leave application and without obtaining any permission from the officer in-charge. When petitioner did not turn up for 30 days at the training center, Indore, his name was removed from the list of trainees on 15.6.1995 and papers were sent to the competent authority for suitable action. It is further submitted that entire story of wife's illness is concocted and is not supported by any documentary or other evidence. The contention of the petitioner that he was bitten by snake has also been refuted inasmuch as in support of this contention petitioner has produced a certificate from Sarpanch which has been disputed by the learned counsel for the respondents. It has been submitted that Sarpanch has no authority to issue any certificate in favour of the petitioner as is contained in Annexure P-4 showing that on 30th August, 1995 petitioner was bitten by a snake and he could be cured after continuous treatment, specially when no supporting medical prescriptions were enclosed. It is further submitted that in terms of the orders passed by this Court, opportunity of hearing was extended to the petitioner and notice dated 25.8.2005 was served on the petitioner, copy of acknowledgment of which has been enclosed with the return, and thereafter another notice was served vide Annexure R-3 dated 29.9.2005 and thereafter impugned order, Annexure P-1, has been passed. According to the respondents, they have complied with the provisions of Police Regulations and M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and it has been argued by learned counsel for the respondents that since petitioner was not confirmed and was still on probation, there is no illegality in the impugned orders terminating the petitioner from service for recurrent unauthorized absence from duty. 4. 4. Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Chhel Singh v. M.G.B. Gramin Bank Pali and others, as reported in (2014)13 SCC 166 , wherein it has been held that if appellant substantiates that absence was beyond his control on medical ground and there is no allegation of wilful absence and medical certificates submitted by the appellant are not challenged as being forged, fabricated or obtained for consideration, then the impugned order of punishment is not sustainable in the eyes of law. Similarly reliance has been placed on the judgment of this Court in the case of Balu Singh v. State of M.P., as reported in 2011(4) MPLJ 423 . But the facts of the case of Balu Singh are different and distinguishable inasmuch as in that case absence was on the ground of petitioner's suffering fracture, and therefore, he was absent from duty on account of said fracture, whereas in the present case, it is admitted that petitioner was absent from duty on the pretext of some illness of his wife which is not duly supported by documentary evidence. In any case, there is distinction between illness of an employee and illness of spouse and same weightage cannot be assigned to two illnesses as they are distinguishable. 5. Learned counsel for the State has placed reliance on the judgment of the Supreme Court in the case of Rajinder Kumar v. State of Haryana, as reported in AIR 2015 SC 3780 , wherein it has been held that a person working in Armed Forces or a Welfare Service, if absents unauthorizedly and that too recurringly, then no interference can be made in the finding that a person is unfit for service on account of unauthorized absence, but the Supreme Court directed that the order of dismissal be converted into punishment of compulsory retirement looking to the long service of the petitioner. 6. In the present case, the fact is that petitioner was appointed in the year 1992 and has been dismissed in the year 1995 and during such a short span petitioner unauthorizedly absented himself twice, once in the beginning when he was sent for training at Jabalpur and thereafter in 1995 when he was deputed for training at Indore. It is also apparent that petitioner was provided opportunity of hearing to explain his misconduct. It is also apparent that petitioner was provided opportunity of hearing to explain his misconduct. Since he has been dismissed on account of continuous and recurring absence from the duty which remains adequately unexplained, the petition deserves to be dismissed and is dismissed. B. P. Singhal for petitioner; C. R. Roman, Government Advocate for respondents/State.