Ex.Sepoy/G.D Sunil Kumar vs Union Of India & Ors.
2010 Latest Caselaw 3714 Del

 
*	IN THE HIGH COURT OF DELHI AT NEW DELHI

						 Date of decision: 10th August, 2010 

+			WP (C) No.6538/2008


	EX.SEPOY/G.D SUNIL KUMAR ..... Petitioner
				Through Mr. D.K. Sharma, Adv. 



			versus


	UNION OF INDIA & ORS. 		..... Respondents

Through Dr. Ashwani Bhardwaj, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Yes Digest?

GITA MITTAL, J (Oral)

1. This writ petition has been filed by the petitioner challenging an order dated 10th April, 2007 whereby the respondents had informed the petitioner of the acceptance of his request for discharge-cum-resignation letter w.e.f. 8th February, 2007.

2. The petitioner was selected as a Constable in the Indian Tibetan Border Police (hereinafter referred to as `ITBP' for brevity) on the 12th September, 1987. After completion of training, the petitioner was posted in different places including Punjab, Jammu & Kashmir, Uttranchal & Arunachal Pradesh. The present matter relates to the petitioner's last posting with the 13th Battalion while at Baser in Arunachal Pradesh. On 1st December, 2006, the petitioner applied for two months annual leave. The reason which was advanced by the petitioner for grant of his leave was marriage of his nephew which was to be solemnized on 7th December, 2006. The petitioner was sanctioned ten days casual leave with effect from the 5th of December, 2006 to 15th of December, 2006.

3. A claim is made by the petitioner that on 14th December, 2006, he had telephonically requested his adjutant for extension of his leave by a period of two months on account of sickness of his wife. It is contended that he was orally informed by the adjutant that such leave stood granted.

4. Before us, it is an admitted position that the petitioner did not resume duties and continued to reside at his home town. It is stated that on 19th April, 2007, the petitioner left for his duty and reached the base at Baser, District Shiyang, Arunachal Pradesh on 21st April, 2007 whereupon he was informed that his duties stood terminated and he was not permitted to stay at base camp.

5. On the contention that the petitioner had not received a copy of the termination letter, an earlier writ petition being WP(C) No.2664/2008 was filed by the petitioner. This writ petition was disposed of by an order passed on 1st April, 2008 whereby the respondents were directed to supply the copy of the termination order to the petitioner, if not already supplied. This court also directed that in case any inquiry was held, the copy of the entire proceedings thereof shall also be supplied to the petitioner within four weeks of the order. The court recorded that the petitioner shall have the right to file an appeal against the said order within the period prescribed under the rules which was to be computed from the date of supply of the documents which was given to the petitioner and that in case he was still aggrieved by the order of the appellate authority, he could approach the court. On these observations, the writ petition came to be disposed of.

6. In compliance of the order passed by this court on 1st April, 2008 and under cover of a communication dated 10th April, 2007, the respondents served a copy of the letter dated 24th May, 2008, upon the petitioner.

7. The challenge by the petitioner is primarily premised on the contention that the petitioner had never submitted a resignation letter and that the respondents have illegally removed him from service. So far as the two resignation letters relied upon by the respondents are concerned, the petitioner has set up a plea that the same were forged and fabricated. The petitioner has disputed signatures on the said communications.

8. We have heard learned counsel for the parties and given our considered thought to the submissions made.

9. So far as the facts relating to service of the petitioner are concerned, there is no dispute. It is also a fact that the petitioner has addressed not even a single communication to the respondents in respect of his leave after he left his posting on 5th December, 2006 till the 1st of April, 2008 when W.P. (C) No.2664/2008 was filed. The only communication with the respondents submitted by the petitioner is by way of a telephone call on 14th December, 2006 purportedly made to the adjutant.

10. On the other hand, the respondents have stated that the petitioner has tendered an application seeking discharge from service due to his domestic problems. A photocopy of a typed letter in Hindi in this behalf has been placed on record and Annexure R-1 with the counter affidavit which bears the signatures of the petitioner as well as those of Havaldar G.D. Wilfred Ekka and Head Constable (CM) Pawan Kumar, colleagues of the petitioner as witnesses. Unfortunately, the date on this communication is not legible. The respondents are also unable to produce the original of this letter and we also find that the same is not diarised in the discharge/receipt record of correspondence of the Battalion which has been placed before us.

11. In the above background, we had passed an order on 18th February, 2010 directing the respondents to file affidavit of the persons who were witnesses and shown as his signatories on the said photocopy with regard to the execution and existence of the original documents. Pursuant to such directions, the respondents have filed affidavits of Havaldar G.D. Wilfred Ekka dated 10th June, 2010 as well as affidavit of Head Constable (CM) Pawan Kumar dated 7th July, 2010. These two deponents have stated that they were posted with the 13th Battalion, ITBP along with the petitioner at the relevant time. The witnesses have confirmed their signatures on the annexure R-1 and have further stated that the same was signed by them in the presence of the petitioner and each other. Both these deponents have affirmed that the petitioner has signed the documents in their presence and of his own free will without any coercion, force or fraud. It is stated that the deponents were not aware about the whereabouts of the originals and that they had been transferred out of the 13th Battalion, ITBP.

12. We may briefly advert to the second communication in this regard which is relied upon by the respondents. A second undated communication from the petitioner has been placed on record as annexure R-5 with the counter affidavit. The original record has been produced before us and carefully perused. The dak receipt register maintained by the respondents contains an entry to the effect that this communication has been received by post with the respondents and has been diarised at serial no.132788 on the 20th December, 2006 when it was received in the 13th Battalion, ITBP. The original of this letter is also available in the record. We find that the signatures of the petitioner appear on the original document which also contains details of its diarisation. The receipt of this letter is thus confirmed by the entries made in the receipt register which has been maintained by the 13th Battalion of the ITBP in the regular course of its business. Unquestionably, such document stands received by the 13th Battalion of the ITBP on 20th December, 2006 as is manifested from the above record.

13. Before proceeding further in the matter, we may deal with the contention of the petitioner that these two letters (Annexure R-1 & R-5) relied upon by the respondents, are not signed by the petitioner. In the absence of the original of annexure R-1, we may have been persuaded to agree with the learned counsel for the petitioner that such documents had not been executed or submitted by him. However, these submissions cannot stand alone and has to be tested with against the other record which has been produced before us. So far as the execution of the document and its existence at the relevant point of time is concerned, the same is adequately made out from the affidavits filed by Havaldar G.D. Wilfred Ekka and Head Constable (CM) Pawan Kumar who have duly witnessed annexure R-1. Nothing has been pointed out to us which would persuade us to disbelieve the deposition of these two witnesses.

14. Coming to the signatures on annexure R-1, we find that even though strictly speaking it would not be open to this court to examine the photocopy of the documents, however the same has been effected in view of the loss of primary evidence which was the original document. In this background, we have examined annexure R-1 against signatures of the petitioner which appear in the annexure R-5 received by the respondents on 20th December, 2006 as well as his several signatures available on our record in the various affidavits which have been filed on record of the present case. It is evident to the bare eye that the signatures of the petitioner appear on both annexure R-1 as well as the annexure R-5.

15. Having arrived at this conclusion, it becomes necessary for us to examine the other ground of challenge to the order of removal from service on the ground that the same does not arise out of the applications made by the petitioner. The respondents have pointed out several factors which lead us to reject the contentions on behalf of the petitioner. The record which has been placed before us contains several communications which have been addressed by the respondents between 15th December, 2006 when the petitioner's leave expired and the 10th April, 2007 when the respondents communicated acceptance of his resignation. In this regard, our attention is drawn to a letter dated 22nd December, 2006 whereby the respondents informed the petitioner that he had not reported for duty despite expiry of leave on 15th December, 2006 (AN) and instead had sent his resignation letter from his home in which he has stated that he did not wish to serve any more due to domestic problems. This office memorandum from the respondents clearly informed the petitioner that he was given one more chance to report for duty immediately after receipt of the memorandum failing which it would be considered that the petitioner was not willing to serve with the ITBP and his resignation would be accepted. We may note that this letter has been sent by the adjutant of the 13th Battalion of the ITBP with whom the petitioner claims to have telephonically communicated on 14th December, 2006.

16. We may note that the above office memorandum dated 22nd December, 2006 has been sent to the correct address of the petitioner. Its dispatch is duly supported by the original postal acknowledgment which we have perused and also in the entries in the register relating to the issuance of the memorandum as well as in the dispatch register maintained by the 13th Battalion of the ITBP in due course. Nothing has been pointed out which would dissuade us from accepting the authenticity or correctness of the record of the respondents.

17. This matter did not end with the issuance of this office memorandum and a further reminder was sent to the petitioner on the 3rd January, 2007 by the adjutant of the 13th Battalion which repeated the above facts as well drew the petitioner's attention to the memorandum dated 22nd December, 2006 and gave him another opportunity to report arrival of his duty. The adjutant informed the petitioner that he was given yet another opportunity to immediately report for duty failing which the respondents would consider that the domestic problem of the petitioner had not been resolved and that he was not interested in serving with the ITBP. The respondents had again informed the petitioner that in such eventuality, the resignation letter sent by him would be accepted.

18. The compassion, care and caution with which the respondents have treated the petitioner is manifested from the fact that this communication has been sent to two addresses of the petitioner, one his home town in the state of Bihar and another to his address in New Delhi by registered post. Again the original record of the issuance of the office memorandum as well as the dispatch register and the postal receipt have been placed before us.

19. It is necessary for us to notice that as per the prescribed procedure, it was open to the respondents to proceed against the petitioner for his unauthorised absence from duty and to initiate the procedure for having him declared "deserter" and issuance of arrest warrant. It appears that having regard to the expression of a domestic problem in the resignation letter, the respondents did not proceed to do so. The authorities were also conscious of the impact of the resignation letter and have compassionately given opportunity to the petitioner to resume duties repeatedly so that any adverse consequences which could enure on acceptance of his resignation, would not follow.

20. Unfortunately, the petitioner spurned even this opportunity advanced to him by the respondents. In this background, the respondents were left with no option but to commence the procedure towards acceptance of the petitioner's discharge-cum-resignation letter. A communication dated 10th February, 2007 was therefore sent by the adjutant to the company commander informing him that the petitioner has sent a resignation letter from his home showing his family problem for which action for discharge was required to be taken and calling upon him to carry out the requisite inspection of weapons, classification of the government property/clothing etc. and preparation of appropriate inventory so that the recoveries, if any, could be made against the final settlement of the petitioner's account in preparation of his discharge.

21. Even thereafter, the record placed before us would show that the adequate opportunity was afforded to the petitioner to still react in some manner with regard to resumption of duty. The respondents have placed before us a copy of the communication dated 10th April, 2007 communicating the order dated 8th February, 2007 passed by the Commandant in exercise of powers under rule 17 read with rule 27(4) of the ITBP Force Rules, 1994, informing that the application for discharge of duty on his own request tendered by the petitioner is accepted with effect from the same date and that he was struck off from the posted strength of the battalion. It was further directed that all pay and allowances due to him were discontinued with effect from such date and his unauthorised absence of 55 days w.e.f. 16th December, 2006 to 8th February, 2007 was regularised as extraordinary leave. Further directions with regard to the deficiency in the inventory of clothes and government stores in respect of the petitioner was also quantified and recovery of Rs.5,223/- and Rs.16,658/- was directed to be made form the pay and allowances due to him and deposited in the government treasury.

22. This communication was sent to the petitioner by registered A.D. post against receipt no.5556 on the 11th April, 2007 after duly diarising at serial no.791101 in the dispatch register maintained by the respondents. The postal authorities made several efforts to serve this order upon the petitioner. Finally the same was returned by the postal authorities after an endorsement dated 28th April, 2006 with the remark that the addressee was not available for the reason that he was at his place of employment. We may note that the postal remarks are a telling statement.

23. It has been submitted by learned counsel for the respondents that this was the background in which the order dated 10th April, 2007 could not be served upon the petitioner.

24. We find that it was this communication which was the catalyst and provoked the petitioner into reacting. It is an admitted position that the petitioner went to his battalion for the first time after 5th December, 2006 only on 21st April, 2007.

25. Learned counsel for the petitioner places reliance on a letter dated 16th July, 2007 sent by his wife to the Headquarters of the ITBP stating that the petitioner had not been permitted to join duties. We may note that the petitioner himself took no action for more than a year even after April, 2007 till he filed the previous writ petition.

26. Inasmuch as the respondents have accepted his letter of resignation, their action in not permitting him the access to the quarter cannot be faulted.

27. So far as the petitioner's challenge to annexure R-1 on the ground that the same is not available is concerned, even if annexure R-1 was to be ignored, the respondents have produced the original of annexure R-5 received by them on the 20th December, 2006 from the petitioner's home town which clearly records that the petitioner, fully possessed of all his senses and faculty, without any force or pressure, was making the request for acceptance of his resignation from service and that the same be expeditiously accepted. The petitioner even made the further request that his account, including the amount accruing on account of GPG/CGEGIS, be expeditiously settled. This communication by itself is a complete resignation letter on which the respondents could have justifiably acted. Nothing therefore would turn on the existence of the original of Annexure R-1.

28. So far as the contention that the petitioner never submitted a resignation letter is concerned, we find that the petitioner has never challenged submission of his resignation letter in response to the respondents' letters dated 22nd December, 2006 and 3rd January, 2007. In this background, the continuation of the petitioner and the challenge to the submission and authenticity of resignation letter in this writ petition is an after thought which deserves to be rejected.

29. We may notice yet another extremely distressing factor. Apart from the prolonged failure to resume duties on expiry of his leave on 15th December, 2006, in para 9 of the counter affidavit, the respondents have pointed out previous instances when the petitioner has failed to report for duty after leave and stated as follows:-

"9. That besides the above facts, the records of the individual is not clean and exhibit case of habitual absenting. The previous leave record of the individual is as follows:-

Sl. No. Place of Posting Period Remarks I 16th Battalion 10.10.1989 to 01.02.1990 106 days absent period regularized as E.O.L.F.O. 5/99, See Appx. (R-10(A)) ii 16th Bn.

25.05.1990 to 24.05.1990 08 days absent period regularized as E.O.L.F.O. 15/99, See Appx. (R-10(B)).

iii 21st Bn.

15.12.1985 to 06.02.1996 54 days absent period regularized as E.O.L.F.O. 4982-85, 124/1997, See Appx. (R-10(C)) iv 11th Bn.

31.10.1997 to 13.11.1997 14 days absent period regularized as E.O.L.F.O. 4/98, See Appx.(R-10(D)) v.

13th Bn.

16.10.2001 to 07.12.2002 53 days absent period regularized as E.O.L.F.O. 3/02, See Appx.(R-10(D)) vi.

13th Bn.

11.11.2002 to 03.02.2002 85 days absent period regularized as E.O.L.F.O. 6/03, See Appx.(R-10(D)) vii 13th Bn.

01.06.2003 to 29.07.2003 59 days absent period regularized as E.O.L.F.O. 28/03, See Appx.(R-10(E)) viii 13th Bn.

Order No.4239-45 Dtd. 02.10.2003 For absent of period 59 days individual reverted from HC/GD to CT/GD, See Appx.(R-4) ix 13th Bn.

27.03.2006 to 15.07.2006 111 days absent period regularized as E.O.L.F.O. 08.06.07, See Appx.(R-10(F)) x 13th Bn.

24.08.2004 to 07.10.04 45 days absent period regularized as E.O.L.F.O. 8/2004, See Appx.(R-10(C)) xi 13th Bn.

13.01.2005 to 15.02.2005 34 days absent period regularized as E.O.L. and 14 days force custody F.O 02.2006-07, see Appx.(R-10(C)) "

These averments are not disputed by the respondents.

30. The above narration would also show that the petitioner was fully conscious of the impact of unauthorised leave of absence and has deliberately chosen to stay away from duty. The petitioner appears to be a habitual defaulter. The postal report also appears to suggest that the petitioner was gainfully employed as well. In any case, there is nothing at all before us which could suggest, let alone manifest any desire or intention of the petitioner for resumption of duty.

31. So far as his wife's sickness as the explanation for staying away from duty is concerned, we have noticed hereinabove that the reason propounded by the petitioner for proceeding on leave was a nephew's marriage. In support of his wife's sickness, the petitioner has placed a medical certificate dated 30th April, 2007 of a Primary Health Centre. No such record was ever placed by the petitioner before the respondents. The petitioner is stated to have served with ITBP since 1987. He was expected to know the manner in which he was required to function in a disciplined para military force and the procedure required to be followed. Even if the petitioner's wife was ailing, he was bound to have completed the formalities and placed proper records before the respondents, got sanction of leave before staying away from duty.

32. We are satisfied that the pleas set up by the petitioner in the writ petition are concocted to support a wholly untenable case. In our view, the respondents have shown extreme sympathy and compassion to the petitioner which has been grossly abused. We have found that the petitioner had sought to resign from service and the respondents have rightly proceeded to do so.

33. The challenge by the petitioner is therefore wholly devoid of merit and is hereby rejected.

This writ petition is dismissed with costs which are quantified at Rs.10,000/-.

GITA MITTAL, J

J.R. MIDHA, J August 10, 2010 aa