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2017 DIGILAW 943 (JHR)

Y. Takumbuba, S/o Yangernok v. Union of India

2017-06-16

PRAMATH PATNAIK

body2017
JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing order dated 14.08.2002, by which, the petitioner has been removed from services; for quashing order dated 29.10.2012, by which the appeal preferred by the petitioner has been rejected and for quashing order dated 05.06.2013, by which, the revision application preferred by the petitioner has been rejected. 2. The facts, in brief, is that petitioner, who was a constable in CISF was deputed in HEC, Ranchi since 1999. While continuing as such a memo of charge was served upon the petitioner for remaining absent unauthorizedly without any information and without permission from competent authorities. Basing on such charges, a departmental proceeding was initiated against the petitioner, in which, after ex-parte enquiry, the enquiry officer submitted its report and on the basis of such report, the disciplinary authority imposed the punishment of removal from services upon the petitioner vide order dated 14.08.2002. However, it is averred that since the petitioner was suffering from Schizophrenia, a deadly mental disease, he was under prolonged medical treatment and when he was declared fit to join on 22.11.2009, the petitioner wrote a request letter to the respondents-authorities on 23.11.2009 to allow him to join duty annexing therewith the medical prescription, on compassionate ground. But, his request was turned down, however, he was advised by the authorities itself to avail opportunity of appeal. Accordingly, the petitioner preferred appeal, which was rejected vide order date 29.10.2012 “being badly time barred”. Pursuant thereto, the petitioner preferred revision, which met with the same fate. 3. Learned counsel for the petitioner submitted with vehemence that the absent was not willful rather it was beyond the control of the petitioner as the petitioner was suffering from a deadly mental disease, Schizophrenia and was under treatment of reputed psychiatrist Dr. U.N. Choudhary of Ranchi Mansik Arogyashala, Ranchi since 01.06.2001 till 22.11.2009. It is well known fact that treatment and recovery from Mental disease takes time, hence, on being declared medically fit to join his duties, he reported before the authorities to consider his case on compassionate ground but his request was turned down without disbelieving the fact of mental illness of the petitioner. Learned counsel for the petitioner further submitted that the departmental proceeding is fraught with procedural irregularity as whole proceeding has been conducted behind the back of the petitioner. Learned counsel for the petitioner further submitted that the departmental proceeding is fraught with procedural irregularity as whole proceeding has been conducted behind the back of the petitioner. It has further been submitted that in enquiry proceeding all the correspondences were made at the native place of the petitioner i.e. at Nagaland whereas the petitioner was under treatment at Ranchi, so he was no knowledge of any proceeding. It has further been submitted that in the case at hand, the petitioner has never been accused of any objectionable behavior or disobedience rather he remained absent for a good and valid reason and which was beyond his control. Further, the appeal and revision of the petitioner has been rejected on the flimsy ground of being time barred and the authorities did not consider that because of ill health the petitioner remained absent from duty. 4. As against this, learned counsel for the respondents raised preliminary objection with regard to maintainability of the writ petitioner on the ground of inordinate delay in approaching this Court to challenge the order passed in the year 2002. On merit of the case, learned counsel for the respondents submitted that on previous six occasions also the petitioner absented himself without any information, for which even he was punished. But, he did not reform himself, which shows indiscipline and disobedience. Learned counsel for the respondents further submitted that in initial stage the petitioner participated in the proceeding but later on he did not appear, hence, ex parte proceeding was initiated against the petitioner, which culminated in passing of impugned order of dismissal. Hence, it is the petitioner who opted not to appear before the enquiry officer and proceeding cannot be faulted with as the enquiry officer has taken every step to secure the presence of the petitioner. It has further been submitted that after acknowledgement of the charge-sheet on 29.08.2001 and enquiry notice on 6.11.2001, the petitioner did not inform the authorities either in writing or verbally that he is suffering from any disease and even at the time of his participation in departmental enquiry on 25.3.2002 he did not say anything about his illness and treatment nor furnished any medical prescription. Questioning the medical credibility of the medical prescriptions and documents, learned counsel for the respondents submitted that the petitioner only used to visit doctor once or twice in a year and he did not even visit in the year 2004, 2006 and 2008 and further in the prescription it is nowhere advised to take rest. 5. Referring to reply to counter affidavit, learned counsel for the petitioner submitted that in case of mental disease particularly, Schizophrenia treatment is prolonged over years and same medication with minor alteration in dozes or combination of drugs has to be taken for a long time. Consultation is often done by the caretaker on phone, which is the practice in case of some other chronic diseases too. In support of his submission, learned counsel for the petitioner referred to excerpts of book of Harrison’s Principle of Internal Medicine, 17th Edition, as Annexure 2 to the Supplementary Counter Affidavit. 6. After hearing learned counsel for the parties at length and on close scrutiny of the materials available on record, there is no shadow of doubt that the there is any procedural irregularity in conducting the departmental proceeding. However, this Court cannot lose sight of the fact that petitioner was suffering from a mental chronic disease for which he was under treatment for a long period and disbelieving of mental illness on the ground as explained in the counter affidavit is not tenable. Furthermore, in the meantime, about more than one and half decades has lapsed since the impugned order of removal from services has been passed by the disciplinary authority, hence, for the interest of justice, it would not be proper to direct the respondents-authorities to re-enquire the matter on any particular point or start a de novo enquiry. Hence, the case of the petitioner falls under the zone of consideration of quantum of punishment. 7. Although, it is the exclusive domain of the disciplinary authority to award punishment as per the charges and the delinquency but looking at the factual position in the case at hand, it appears that gross prejudice has been caused in dispensing with the services of the petitioner for non-consideration of his illness in true spirit and only on the basis of conjectures and surmises without any proper enquiry to believe that the medical prescriptions were forged, the fact of mental illness of the petitioner cannot be disbelieved. 8. 8. For the reasons aforesaid, the impugned order of dismissal from services and order passed by the appellate authority as also the order passed by the revisional authority are hereby quashed and set aside and the matter is remitted to the disciplinary authority to consider the case of the petitioner solely on the doctrine of quantum of punishment and pass a fresh order within a period of two months from the date of receipt/production of copy of this order. 9. With the aforesaid observations and directions, the writ petition stands disposed of.