Chattisgarh High Court
Rishikant vs Union Of India on 1 July, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WA No. 402 of 2024
1. Rishikant S/o Shri Ram Babu Aged About 39 Years Dismissed
Constable / Driver From 38th Batallion, Indo-Tibetan Border
Police, Kharora Camp, Raipur (C.G.), R/o Village 44-A / 292,
Purani Abadi Sikandra Bodla Agra (U.P.)
---- Appellant
Versus
1. Union Of India Through The Secretary, Ministry Of Defence,
New Delhi
2. The Indo - Tibetan Border Police Through - The Chief
Administrative Officer, Kendriya Abhilekh Karyalaya, R.K.
Puram, New Delhi
3. The 38th Battalion Indo - Tibetan Border Police, Through The
Commandant, Kharora Camp, Raipur (C.G.)
4. Deputy Inspector General I.T.B.P. Force, 11 th Floor, Surya Kiran
Building, Shahidnagar, Bhuvneshwar, Odisha
5. B.S. Rajpoot Assistant Commandant, 38 th Batallion, I.T.B.P.
Force Kharora Camp, Raipur (C.G.)
---- Respondents
(Cause-title taken from Case Information System)
____
For Appellant : Mr. Faiz Kazi, Advocate
For Respondents : Mr. Ramakant Mishra, ASG.
Hon'ble Shri Justice Ramesh Sinha, Chief Justice
Hon'ble Shri Justice Ravindra Kumar Agrawal, J udge
Order on Board
Per Ramesh Sinha, Chief Justice
01.07.2024
1. Heard Mr. Faiz Kazi, learned counsel for the appellant as well as
Mr. Ramakant Mishra, Assistant Solicitor General for the Union
of India/respondent No.1.
2. Also heard on I.A. No.1/2024, which is an application for
condonation of delay in filing this writ appeal.
3. On due consideration, I.A. No.01/2024 is allowed and delay of
61 days in filing the writ appeal is condoned.
4. Being aggrieved by the order dated 09.01.2024, passed by the
learned Single Judge in WPS No.3930/2011, whereby the order
dated 01.10.2010 (Annexure P/7) passed by the respondent
authority dismissing the appellant/petitioner from service has
been challenged, was dismissed.
5. The facts of the case, are that, the appellant/petitioner was
appointed on the post of Driver/Constable in the department of
Indo-Tibetan Border Police (in short called ITBP). After joining
the service of ITBP, the appellant/petitioner was performing his
duties well. On 30.04.2010, during the course of duty hours, his
senior officer scolded and beaten him with cruelty in front of
other staff members resulting in pain in his left ear. After the
said incident, hearing problem started with sharp pain and on
consulting with Doctor/Physician, he was shifted to Kharora
Camp, Raipur on 08.05.2010. With the opinion of better
treatment, the appellant/petitioner was referred to ENT
Specialist in the Medical College on 11.05.2010, but he was not
permitted to go out of the camp, therefore, for better treatment
he has left the camp without taking permission of any authority
on 10.06.2010, but he has written a letter to the Station House
Officer, Police Station - Raipur (Annexure- P/3) regarding the
miserable condition in which he had to leave the camp informing
about his medical condition. Thereafter, the appellant sent a
letter on 15.06.2010 to the Commandant, Khorora Camp,
Raipur, stating his grievances and seeking permission to send
his complaint letters to the National Human Rights Commission,
New Delhi, but no action was taken against the senior officer.
Vide letter 24.06.2010, he was directed by the respondent No.3
to join his duties immediately. On the same day, the father of the
appellant/petitioner sent a letter to the respondent authorities,
regarding treatment of his son in the Department of ENT,
Medical Colleger, Agra and also stated as soon as his son get
completely fit, his son will join his duties along with the
documents related to his son's medical emergencies. However,
on 01.10.2010, respondent No.3 passed an order and thereby
dismissed the appellant/petitioner from service (Annexure P/7).
Further, his appeal was also dismissed by order dated
20.11.2010 (Annexure P/14) by respondent No.4/Dy. Inspector
General, ITBP, Bhuneshwar. In this way, the respondent
authorities have acted arbitrarily in terminating the service of the
appellant/petitioner within a short span of time and not affording
the appellant/petitioner sufficient time to recover from his
ailments, though his father had made communication timely
regarding his son's medical condition and his inability to join his
duties at the relevant period.
6. In the present case, the punishment of termination from service
was too harsh as the appellant/petitioner had received injury
from his own superior officer. Further, the punishment must be
imposed by convening a Force Court, or else, in accordance
with Rule 20 "Termination of service of person, other than
officers of account of misconduct" of the Rules of 1994.
Moreover, neither any show-cause was issued to the
appellant/petitioner, nor was there anything brought on record,
by respondents, that such reasons were recorded prior to the
decision to not issue a show-cause to the appellant/petitioner.
The respondent authorities have not initiated the Court of
enquiry convened to declare the appellant/petitioner a 'deserter'
under Section 74(2) of the Act of 1992 and not even, he was
afforded a chance to cross-examine the witnesses who had
given evidence against the appellant/petitioner. Therefore, the
Hon'ble Single Judge has erred by placing reliance in the
judgment dated 19.11.2014 in S.L.P. (Civil) No.23631/2008 of
the Hon'ble Supreme Court delivered in Union of India and
others Vs. P. Gunasekaran. Hence, this writ appeal was filed
by the appellant/petitioner with the prayer as below :
"It is therefore most humbly and respectfully
prayed on behalf of the appellants, that the
order of the Hon'ble Single Bench may kindly
be set-aside, and that this Hon'ble Court may
be kind enough to direct the respondent
authorities to grant leave to the appellants, in
order for them to be able to pursue / complete
their further education, in the interest of justice."
7. The learned counsel for the appellant submitted that
appellant/petitioner's medical conditions were simply ignored by
the respondent authorities which was caused due to act of
cruelty of his senior officer and instead of taking disciplinary
action against the senior officer, the superior officer has taken
disciplinary action against the appellant and ultimately dismissed
him from the service without affording any opportunity of hearing
his grievances.
8. The learned Single Judge, in WPS No.3930/2011, has also
overlooked the medical conditions of the appellant/petitioner for
which the respondent No.5 is wholly responsible, who
deliberately harassed an humiliated the appellant/petitioner for
not obeying his orders to do undue and unfair work and also
assaulted him with cruelty. The learned counsel for the
appellant/petitioner further submitted that the impugned order of
termination of appellant/petitioner from service is contrary to the
law and argued at length to set aside the said order by allowing
this appeal.
9. On the other hand, learned counsel for the respondent opposed
the argument advanced by the learned counsel for the appellant
and submits the learned Single Judge has not erred in delivering
the order impugned and no interference is called for by this
Court.
10. We have heard the counsel for the parties and perused the
impugned order and other documents appended with this writ
appeal.
11. Considering the submissions advanced by the learned counsel
for the parties, which ultimately adheres that the
appellant/petitioner remained absent without leave from the Unit
Campus at Kharora, District - Raipur and in spite of several
notices and paper publication, the appellant/petitioner chose not
to appear before the respondent authorities which shows that he
did not bother to join back his duties at Unit. Being a member of
the armed force, the act of the petitioner was unbecoming as, for
being a member of armed force, a high degree of discipline is
required which clearly appears to be lacking in this case.
12. Further, perusing the impugned order, the material available on
record, records of the writ petition and also considering the
finding recorded by the learned Single Judge while deciding the
writ petition, we are of the considered view that the learned
Single Judge has not committed any illegality, irregularity or
jurisdictional error warranting interference by this Court and
there is no merit in the writ appeal.
13. Accordingly, the writ appeal being devoid of merit is liable to be
and is hereby dismissed. No cost(s).
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Ravi Mandavi
