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2017 DIGILAW 43 (MEG)

Ex-Constable Shri Anupam Paul v. Union of India

2017-06-16

S.R.SEN

body2017
JUDGMENT : S.R. Sen, J. Heard Mr. S.Dey, learned counsel on behalf of the petitioner as well as Mr. N.Mozika, learned CGC on behalf of the respondents - Union of India. 2. The petitioner's case in a nutshell is that: "The petitioner is a bona fide citizen of India by birth and as such he is entitled to all constitutional and others legal rights guaranteed under the Indian Constitution and other Laws of the Land. The Petitioner was appointed as a constable in the Border Security Force on 12.04.2012, as per the Rules and Regulation of the Border Security Force. After the Petitioner was appointed, he has under gone the rigorous training of Border Security Force at Hazaribagh for a period of 9 (nine) months. After a period of one year the Petitioner was posted at Meghalaya Indo Bangladesh border (Dhanakgri, West Garo Hills District). It is to mention herein that the Petitioner Official Identity Card was issued by the Commandant of the 183 BN, BSF and he was also allotted with the Personal number 12090175 form the said unit. After the leave was granted by the authority of 183 BN BSF, the Petitioner reached his native place at Kharagpur, West Bengal, as the petitioner was enjoying his leave, on 15.01.2015 the Petitioner was travelling through a Motor Cycle to meet his relatives. An unknown truck hit the Petitioner from his back side near Benapur village under Kharagpur Police Station, West Bengal. Immediately after the Petitioner was hit by the said unknown truck, the Petitioner was unconscious and he sustained several injuries with fracture on his collar bone, wrist and ring finger of his right hand, but unfortunately some of the local people took the Petitioner to the near by Sub-Divisional Hospital, Kharagpur and admitted him and thereafter one of the Hospital staff informed about the accident to the father of the Petitioner. The petitioner was shifted to a private clinic and on the advice of the private doctor namely Dr Dibakar Patra, MS, ORTHO the Petitioner was shifted to Cuttack at Balaji Hospital, Ranihat Medical Road, Cuttack, Odisha on 17.01.2015. The petitioner was shifted to a private clinic and on the advice of the private doctor namely Dr Dibakar Patra, MS, ORTHO the Petitioner was shifted to Cuttack at Balaji Hospital, Ranihat Medical Road, Cuttack, Odisha on 17.01.2015. It is further to mention herein that immediately after visiting the Petitioner at hospital on the very day of the accident, the Petitioner's mother informed the Respondent No. 4 over phone (09436994724) about the incident and the Respondent No. 4 verbally assured the Petitioner's mother that the leave of the Petitioner will be extended immediately and moreover it was also informed to the said Respondent that the Petitioner will be shifted to Cuttack for better treatment. In the Balaji Hospital, Ranihat Medical Road, Cuttack, Odisha, the Petitioner had under gone a major surgery on 19.01.2015 and the collar bone of the Petitioner was operated by inserting a Metal Plate, Screws etc and thereafter the Petitioner's right hand was plastered. It is to mention herein that on 29.01.2015 the Petitioner was discharged from the Balaji Hospital, Cuttack and with an advised to follow up his treatment. It is further to mention herein that after the Petitioner was discharged from the Balaji Hospital, Cuttack on 29.01.2015, the Petitioner was completely bed-ridden and cannot move even to the toilet without the help of others. That vide Office Order No. Estt/183 Bn/ Leave/2015/3419-20 dated 30th March 2015 issued a letter whereby it was informed to the Petitioner that 30 days E/Leave was granted to the Petitioner w.e.f. 07/01/2015 to 05/02/2015 with direction to report at Bn HQ Dhanakgre, Tura (Megh) on 06/02/2015 (AN) after expiry of said leave but you did not do so and overstayed from leave w.e.f. 07/02/2015 (FN) without sufficient cause. As per the said letter it was directed to the Petitioner to join his duty at Bn HQ Dhanakgiri immediately failing which suitable action will be initiated against your Petitioner as per the provision of BSF Act and Rules. The Petitioner begs to state that thereafter the Petitioner received an order bearing No. F/No. 26/11/2011- Esrr/Shg/2015/9331-34 DATED 10.11.2015 issued by the Respondent No. 3, wherefrom it appears that the petitioner dated 13.07.2015 under Rule 28 A BSF Rule 1969 was dismissed by the said Respondent. The Petitioner begs to state that thereafter the Petitioner received an order bearing No. F/No. 26/11/2011- Esrr/Shg/2015/9331-34 DATED 10.11.2015 issued by the Respondent No. 3, wherefrom it appears that the petitioner dated 13.07.2015 under Rule 28 A BSF Rule 1969 was dismissed by the said Respondent. The material on record having clearly negated the charge against the Petitioner, the same was not appreciated in the correct perspective and the conclusion so reached was perverse. The decision of removal from service and the decision making process is vitiated and as such, the order dated 29th June 2015 and 10th November 2015 is liable to be interfered with, set aside and quashed. Hence this petition." 3. Mr. S.Dey, learned counsel for the petitioner submits that the petitioner joined service in the month of April, 2012 and thereafter he was discharging his duties with utmost sincerity and honesty. However, he was a little frustrated when his superior officers use to ask him to take care of their dogs but even then, he never protested or complained. Then he applied for leave to go to his hometown and on 05-01-2015 was granted one month's leave. Unfortunately, on 15-01-2015 he met with an accident at West Bengal and he had to undergo several surgeries. As a result, as he was under treatment, he could not join his duties after expiry of his leave period and was terminated and not allowed to join his duty. Learned counsel for the petitioner further contended that the said termination is arbitrary and without application of judicial mind. 4. On the other hand, learned CGC, Mr. N.Mozika submits that the petitioner was a habitual absentee in the office without proper leave and did not join duty on earlier three occasions (the first time for 37 days, second time for 13 days and third time for 3 days). 5. After hearing the submissions advanced by the learned counsels, the issue which arose before this Court is whether termination attributed upon the petitioner is proper or equal to the offence committed by him. I have examined the medical reports at page 25, 26, 31, 35 and the termination order at page 36 Annexure-8. The certificate issued by the Govt. of West Bengal, Office of the Superintendent, Kharagpur, S.D. Hospital speaks that Mr. Anupam Paul i.e. the petitioner was admitted at Kharagpur S.D. Hospital in the Surgical Ward on 15-01- 2015 at 15:55. I have examined the medical reports at page 25, 26, 31, 35 and the termination order at page 36 Annexure-8. The certificate issued by the Govt. of West Bengal, Office of the Superintendent, Kharagpur, S.D. Hospital speaks that Mr. Anupam Paul i.e. the petitioner was admitted at Kharagpur S.D. Hospital in the Surgical Ward on 15-01- 2015 at 15:55. I have also perused the discharge summary at page 26 Annexure-4 issued by Balaji Hospital, Ranihat Medical Road, Cuttack. From the said discharge summary, it also appears that the petitioner was admitted in the hospital on 17-01-2015 and discharged on 29-01-2015. I have also perused Annexure- 6, a certificate issued by Balaji Hospital wherein it is written that he was further admitted on 01-04-2015. Annexure-7 shows that 27-07-2015 is the date of admission and date of surgery is 27-07-2015 and date of discharge is 28-07-2015. 6. After perusal of all the medical certificates, I do not find any reason to satisfy myself or to record any reason that these certificates are fake or that there was no accident met by the petitioner. One must remember that either if we are in the army or civil job, we are all human beings and anytime anybody may fall sick or meet with an accident, and this cannot be denied. Just because he is in a paramilitary force and could not join office in time, for that reason, termination from service without any enquiry or any harsh punishment does not meet the concept of principle of natural justice. In my considered view, the authority of the BSF at best could have made his excess leave, without pay and that would have sufficed the purpose. However, termination for such lapses is unwarranted. Therefore, Annexure-8 at page 36 order dated 29-06-2015 and Annexure-10 at page 39 of the writ petition, order dated 10-11-2015 are hereby set aside. Respondents are directed to take back the petitioner in service and if they want, they can deduct the salary for those periods when he remained absent from duty without proper sanction. Petitioner is also directed not to claim the salary during the period when he was not on duty and such absence without any sanctioned leave. 7. With this observation and direction, the instant petition is allowed and stands disposed of.