H.P. Singh vs Union Of India And Anr.
1995 Latest Caselaw 603 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The petitioner, who is a member of the Border Security Force (hereinafter referred to as `The B.S.F.'), has filed the present writ petition under Article 226 of the Constitution of India. The main grievance of the petitioner is that despite the fact that the state of his health required immediate specialised treatment by the specialists of the All India Institute of Medical Sciences (hereinafter referred to as `the AIIMS'), New Delhi, his request for his leave was declined and he was not permitted to leave for Delhi by the concerned authorities of the B.S.F.

(2) On the other hand the case of the respondents, in brief, is that as the petitioner has to face trial for over stayal of leave, he could not be granted leave and permission to leave for Delhi as requested by him and that he could be granted leave and permission to leave Delhi after the conclusion of the above said trial.

(3) We have heard the learned counsel for the parties and have also gone through the documents/material on record. From the documents on record, more particularly the documents/certificates, issued by the concerned doctors of the A.I.I.M.S, the genuineness of which is not disputed even by the respondents, it is apparent that the state of health of the petitioner is such which requires treatment by specialists. Even the respondents in the counter affidavit have admitted that the petitioner for his ailment was not only admitted in the hospital but the concerned doctors of the B.S.F. had advised the petitioner to undergo specialised tests such as T.M.T., Echo-Cardigram etc. In the presence of the above facts, the contention of the petitioner that he requires immediate specialised treatment by the specialists of A.I.I.M.S. at New Delhi for his ailment prima facie does not appear to be ill founded and as such deserves consideration by this Court. On a query raised by us during the hearing of the petition, the learned counsel for the respondent, after seeking instruction from the departmental representatives, who were present in the Court, informed us that there were precedents where in such like cases the delinquent official, during the period of trial, was attached to the place where the trial of such official was held.

(4) We have given our thoughtful consideration to this aspect and we are firmly of the view that it would be not only in the interest of the petitioner but also in the interest of the respondents and also desirable for the expeditious disposal of the proposed trial if the same is held at Delhi because, in the first place, from the perusal of the counter affidavit, filed by the respondents, it is a apparent that one of the grounds on which the proposed trial has been initiated is the certificates, issued by the concerned doctors of R.M.L. Hospita, Lady Harding Medical College, Smt. Sucheta Kriplani Hospital and Safdarjung Hospital in favor of the petitioner. As per the case of the respondents, medical certificates issued by the above said medical institution were obtained by the petitioner by concealment of facts regarding his past treatment/rest. During the proposed trial the evidence of the concerned doctors of the above said medical institution, which all are located in New Delhi would be required. Secondly, during the course of the proposed trial the petitioner in his defense is likely to examine the concerned doctors of A.I.I.M.S. who too are stationed at New Delhi. In case the proposed trial is held at the place proposed by the respondents, in that event all the concerned doctors from the above mentioned hospitals/medical institution will have to go to that place with records thereby not only incurring avoidable expenditure but also absence from duty for a consideration period as the place of proposed trial is located in a distant area. Thus viewed from all angles it would be in the interest of justice if the proposed trial of the petitioner takes place at Delhi.

(5) During the course of arguments, the learned counsel for the petitioner urged that the authorities of the B.S.F. may arrest the petitioner and may take him to Srinagar on grounds of desertion. It was prayed by him that the respondents be restrained from arresting or apprehending the petitioner on the above ground till his proposed trial is concluded. In our opinion, it may not be possible for us to give the above relief to the petitioner in the present petition because the above relief falls beyond the ambit and scope of the present writ petition. Law is well settled that a relief which cannot be given in the main petition, cannot be allowed in a miscellaneous petition. Neither any such ground has been urged not any such relief has been claimed by the petitioner in the present petition. In view of the position explained in the present writ petition. However, in the interest of justice, the petitioner is given the liberty to file a fresh petition on the above ground for the above cause of action before the appropriate forum, as may be available to him in accordance with the provision of law, if so advised.

(6) In view of the position explained above, the writ petition is disposed of with the following directions:-

(I)THATthe proposed trial of the petitioner be held at Delhi;and

(II)THATduring the period of trial the petitioner be attached to Delhi or may be granted medical leave or leave of the kind due to the petitioner in the discretion of the concerned Competent Authority.

(7) With the above observation the petition stands disposed of. No order as to costs.