Delhi High Court
Hari Kishan Dahiya vs Govt. Of Nct Of Delhi & Ors. on 23 September, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 2557/2005
% Date of Decision: 23.09.2010
HARI KISHAN DAHIYA .... Petitioner
Through Mr.M.K.Bhardwaj, Advocate
Versus
GOVT. OF NCT OF DELHI AND ORS. .... Respondents
Through None
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in
the Digest?
: MOOL CHAND GARG, J. (ORAL)
*
1. This writ petition has been filed by the petitioner who filed
Original Application No. 113/2001 impugning the order of the
respondents dated 14.09.1998, whereby a departmental enquiry was
initiated against him as also the findings returned by the Inquiry
Officer dated 27.03.1999 holding him guilty of the charges leveled
against him of remaining habitually absent from duty. The petitioner
also assailed the order of the respondents dated 14.09.1998
dismissing him from service as well as the order of the Appellate
Authority, whereby the punishment imposed upon him was
maintained.
2. Before us, the petitioner has assailed the order of the Tribunal,
whereby the Tribunal upheld the punishment awarded to the
petitioner and has been pleased to dismiss the original application
filed by the petitioner under Section 19 of the Administrative Tribunal
Act, 1985. It is submitted that the petitioner had been requesting the
respondents to retire him from service on account of his continued
illness as a patient of epilepsy which is the cause of his absence but
the respondents have not acceded to his request, rather they
resorted to procedure as aforesaid unmindful of the physical
conditions of the petitioner and thus, it is submitted that the entire
process of holding an enquiry against the petitioner is vitiated. It is
also submitted that it would have been proper for the respondents to
have accepted his request for voluntary retirement which would have
brought the lis to an end in view of the fact that he had already
served the department for a period of 28 years and it was thereafter,
on account of suffering from epilepsy wanted retirement from service
voluntarily.
3. According to the Tribunal, to substantiate his illness, the
petitioner had not submitted his medical record nor sent any
information to the Inquiry Officer apprising the seriousness of his
illness and request to postpone the enquiry and, therefore, orders
passed by the Inquiry Officer holding him guilty of the charges after
proceeding ex parte were justified. The cumulative effect of his
absence which was not satisfactorily explained, the punishment
awarded to him could not be faulted with.
4. To appreciate the reasoning of the Tribunal and submissions
made by the petitioner, we may note that the petitioner was enrolled
as a Constable on 1.11.1968. On account of suffering from epilepsy
and seizures he applied for voluntary retirement since 1996 but his
request was not acceded to. A departmental enquiry was ordered
against the petitioner and he was proceeded against by issuance of
summary of allegations where he has been alleged to have remained
unauthorisedly absence for a period of six days and despite notice to
undergo second medical examination to verify the genuineness of the
medical record, the petitioner refused to get the CT scan done
privately. It was alleged that he was again absent for a period of one
hour and twenty minutes and thereafter, remained absent w.e.f.
20.04.1998. There were instance of absence from duty even earlier.
5. As stated above, the petitioner has not participated in the
enquiry and thus was proceeded ex parte. Prosecution witnesses
were examined and the Inquiry Officer returned a finding holding the
petitioner guilty of the charges and on that basis, the Disciplinary
Authority imposed punishment of dismissal and to treat the period of
absence as not spent on duty.
6. It has been submitted on behalf of the petitioner that ex parte
proceedings resorted to against him were in violation of Rule 18 of
the Delhi Police (Punishment and Appeal) Rules, 1978 as the
petitioner had neither refused nor absented without any reasonable
cause from the inquiry. In fact, as he was not keeping good health
and undergoing treatment in the hospital, requested the authorities
to keep the enquiry in abeyance. It was also his case that he was
incapacitated on account of seizures for which he was getting
treatment from Government Hospital and recognized doctors under
the CCS (Leave) Rules, 1972. The medical reports have also been
placed before the authorities but no heed was given to it. Even
though he had reported back on 17.04.1998 and had complied with
the directions by reporting at RML Hospital but due to fault in the CT
scan machine, he was not subjected to second medical examination.
He has also given other explanations.
7. Some of the observations made in the impugned order by the
Tribunal which reflects upon the medical illness of the petitioner are
reproduced hereunder for the sake of reference:-
"9. On the other hand, Sh. Ram Kawar, learned
counsel for respondents denied the contentions and has
stated that the applicant after availing medical rest was
asked to undergo second medical examination for which
he was taken to RML Hospital on 30.03.1998, and was
called on 31.03.1998. He was again called on 03.04.98,
and on examination of his medical papers, he was
advised to come on 17.04.1998 to get the CT Scan from
CGHS approved clinic/ hospital, as the CT Scan machine
was out of order. Applicant at this movement showed
his inclination and suggested to get his CT Scan done
privately, which is reflected from RML's Memorandum
dated 14.05.1998 but thereafter he has not produced
the CT Scan and thereafter he absented himself.
Notices have been sent on 21.04.1998, 08.05.1998 and
12.05.1998 to the applicant but he has not responded to
despite services. Finding no alternative, as the
applicant was adopted dilatory tactics and without any
reasonable cause, failed to attend the inquiry, the same
was proceeded ex-parte. Witnesses have been
examined and the applicant thereafter also through
several notices intimated to participate in the
proceedings which even after on receipt were not
complied with by the applicant, and as a result, the
inquiry officer held the proceedings ex-parte and after
examination of witnesses, holding the applicant guilty."
8. According to the petitioner, he applied for voluntary retirement
in the year 1996 itself taking into consideration his medical condition.
However, the respondents instead of heeding to his request have
simply ignored the same despite production of medical documents
before the authorities. Some averments made by the petitioner in his
Original Application are relevant. In paragraph 4.3 and 4.5 of the
Original Application, the petitioner had stated that due to ill health he
could not cope up with physical strain of his job and circumstances
forced him to move an application for grant of voluntary retirement
on 4.9.1996 through proper channel, which was rejected by the
respondents for no rhymes or reasons. Even thereafter, his health
deteriorated and duration of seizure and blackouts increased. The
fourth respondent instead of showing sympathy to the petitioner
became savage towards him. The attitude of the fourth respondent
was prejudiced and vindictive towards the petitioner as it is clearly
established from the fact that an application made by the petitioner
on 13.11.1996 to get 30 days leave on the ground of marriage of his
son was rejected by the said officer. He also stated that as his health
started deteriorating on account of epilepsy he went to the CGHS
Hospital and was diagnosed by the Doctor that he has been suffering
from Epilepsy. The doctors advised him to relieve himself from mental
tension before starting his treatment as his illness required complete
rest. In view of the advice so given by the doctors the petitioner gave
a letter dated 18.09.1997 to the respondents and requested for 60
days leave for treatment. While the petitioner was undergoing
treatment for his illness in Safdarjung Hospital under the charge of
Dr.D.C.Jain, Neurologist, he again gave an application for leave to the
respondents but the same was not accepted by them. In these
circumstances, the petitioner was unable to cope up with his sensitive
duty and thus moved another application dated 9.10.1997 for
voluntary retirement, which was again rejected without any cogent
reasons except that the ACP after hearing the petitioner noted in his
note sheet on 13.10.1997 that the petitioner should not be sent on
sensitive posting and outstation duties but the fourth respondent paid
no heed to the report given by the ACP and made a vindictive order
smacking of prejudiced and bias. The petitioner made several oral as
well as written requests to the respondents on January 1998,
February 1998 and March 1998, to relieve him from duty as he was
seriously ill and he showed the numbers of medical certificates as
well as prescription to the respondents. In furtherance of the
directions given by the fourth respondent the petitioner went to the
Ram Manohar Lohia Hospital and met to the concerned doctor who
examined him on 30.3.1998, 31.3.1998 and 17.4.1998. On 3.4.1998
Dr.Arun Jain examined the petitioner and advised the police officials
accompanying the petitioner to get the ECG and scan of brain done of
the petitioner form the private hospital. Even though the petitioner
had been asking the respondents to make the necessary
arrangements but the respondents took a different stand and directed
the petitioner to bear the expenses himself. Thereafter, the
petitioner was kept like a prisoner in the Driver's barracks vide order
dated 16.4.1998 and in fact, he was found unconscious at around 7
pm on 18.4.1998. He again made a request for voluntary retirement
to get a proper medical treatment and sent a copy of the same to the
Commissioner of Police. He has also given some other instances
which show that since the petitioner not keeping medically well, he
wanted voluntary retirement but his request was not accepted. It is
true that the petitioner had been awarded censure on many
occasions earlier. The factum of his medical illness and his request
for voluntary retirement even though is available with the
respondents, it seems that the said factor has not been taken note of
by the respondents, the Inquiry Officer, the Disciplinary Authority and
the Appellate Authority at all while punishing the petitioner with a
punishment of dismissal.
9. It may be observed here that the Inquiry Officer was fully aware
of the physical condition of the petitioner as can be inferred by a
perusal of the facts narrated in page 67 of the paper book. The
relevant portion is reproduced hereunder:-
"Previously he availed 5 days Medical rest w.e.f.
10.11.97 to 14.11.97 and the same has been decided as
commutted leave, however a letter was written to
C.M.O., RML Hospital, New Delhi vide this office
No.1674-76/CB-III Bn. DAP dated 24.02.98 to obtain
second medical opinion about the opilepsy disease of
him. On 30.03.98, he along with HC Virender (Medical
Asstt.) proceeded to RML Hospital, New Delhi vide D.D.
No.35 dated 30.03.98 but he was again called by C.M.O.
on 31.03.98 for his second medical opinion: on 31.03.98
he along with HC Satender Singh, No.2197/DAP
proceeded to RML Hospital, New Delhi vide DD No.19-A
dated 31.03.98. On checking his medical treatment
papers and test reports, Dr. Arun Jain of RML Hospital,
New Delhi advised him to come on 03.04.98 along with
his previous test reports of safdarjung Hospital. On
03.04.98 he along with HC Ishwar Singh, 1070/DAP
proceeded to RML Hospital. His second medical
examination was carried out by Dr. Arun Jain at RML
Hospital who advised him to come on 17.04.98 after
getting the C.T.Scan report from CGHS approved
Clinic/Hospital as the C.T.Scan machine of RML Hospital
was out of order. As per the advise of Dr. RML Hospital
C.T.Scan of him was required to be completed by a
private clinic/Hospital on cash payment. As such
request was made to CMO RML Hospital, New Delhi vide
this office memo. No.2664/CR-III Bn.DAP dated 22.04.98
for granting permission to obtain C.T. Scan from private
clinic/Hospital approved by CGHS authority so that the
C.T.Scan of him could be done. But he refused to RI/III
Bn.DAP to get the C.T.Scan test from his own pocket.
Whereas Incharge second Medical examination of RML
Hospital vide memo. No.13-9/98 RMLH (M-II)/10792,
dated 14.05.98 he himself suggested that he would got
his C.T. brain examination of his own privately."
10. Similarly, in the order passed by the Disciplinary Authority,
there is a mention about the medical health of the petitioner, which is
reproduced hereunder:-
"Previously the ASI availed 6 days medical rest w.e.f.
10.11.97 to 15.11.97 and the same has been decided as
commuted leave, however a letter was written to CMO
RML Hospital New Delhi vide this Office No.1674-75/CR-
III B. DAP, dated 24.03.98 to obtain second medical
opinion about the epilepsy disease of the ASI. On
30.03.98 ASI Hari Kishan No.2734/D along with Hon'ble
Court Virender (Medical Asstt) proceeded to RML
Hospital, New Delhi vide DD No.35 dated 30.03.98 for
his second medical opinion. On 31.03.98 ASI Hari
Kishan along with Hon'ble Court Satender Singh,
No.2197/DAP proceeded to RML Hospital, New Delhi
vided DD No.19-A dated 31.03.98. On checking his
medical treatment papers and test reports, Dr. Arun Jain
of RML Hospital, New Delhi advised him to come on
03.04.98 along with his previous test reports of
Safdarjung Hospital. On 03.04.98 ASI Hari Kishan along
with Hon'ble Court Ishwar Singh, No.1070/DAP
proceeded to RML Hospital. His second medical
examination was carried out by Dr. Arun Jain at RML
Hospital. His second medical examination was carried
out by Dr. Arun Jain at RML Hospital who advised him to
come on 17.04.98 after getting the C.T. Scan report
from CGHS approved clinic/hospital as the C.T. Scan
machine of RML Hospital was out of order. As per the
advise of Dr. RML Hospital CT Scan of the ASI was
required to be completed by a private clinic/hospital on
cash payment. As such request was made to CMO RML
Hospital, New Delhi vide their office memo No.2664/CR-
III Bn.DAP, dated 22.04.98 for granting permission to
obtain CT Scan from private clinic/ hospital approved by
CGHS Authority so that the C.T. Scan of the ASI could be
done. But the defaulter ASI refused to RI/III Bn. DAP to
get the CT Scan test from his own pocket. Whereas
Incharge Second Medical examination of RML Hospital
vide memo No.13-9/98 RMLH(M-II)/10792, dated
14.05.98 that the defaulter ASI himself suggested that
he would get his CT Brain examination of his own
privately. It looks that the defaulter ASI has
misquoted/misrepresented facts to higher authorities
regarding said examination due to the reasons best
known to him."
11. No substantial cause has been shown by the respondents as to
why the request made by the petitioner to seek voluntary retirement
time and again i.e. in the year 1996, 1997 and 1998 on account of his
continued illness has simply been ignored. The respondents have
been proceeded departmentally against the petitioner on account of
unauthorized absence simply because he did not agree to get the C.T.
scan done by spending from his own pocket.
12. In the counter affidavit filed by the respondents, this has been
admitted by the respondents that the petitioner had availed six days'
medical rest for treatment of epilepsy disease. There is also an
admission that the petitioner was examined at Ram Manohar Lohia
Hospital. He went there along with HC Virender, Welfare Officer again
and again. He was bearing treated at the said hospital and was asked
to come repeatedly for getting himself checked and for further
advice. The only point taken into consideration by the respondents to
oppose the petition is that he did not go to get CT scan done at his
own costs.
14. The petitioner was employed in Delhi Police on 1.11.1968 and
on 4.9.1996 when he made the first application for voluntary
retirement, he had completed 28 years of service and thus, was
entitled to seek voluntary retirement. The Government servant who
completed 20 years of service is entitled to seek voluntary retirement
from service as per Rule 48A of the CCS Pension Rules.
15. There is also a provision in Pension Rules i.e. Rule 38 which
provides for invalid pension. Invalid pension is granted to a
Government servant if a Government servant retires from the service
on account of any bodily or mental infirmity which permanently
incapacitates him for the service. For that purpose, the Government
servant is only required to submit a medical certificate. As per Rule
36, retiring pension can also be granted to a Government servant who
retires or retired in accordance with provisions of Rule 48 and 48A of
these Rules, Rule 56 of the Fundamental Rules or Article 459 of the
Civil Service Regulations and to a Government servant who, on being
declared surplus, opts for voluntary retirement in accordance with the
provisions of Rule 29 of these rules.
16. Rule 48-A which permits voluntary retirement on completion of
20 years' qualifying service is reproduced hereunder:-
"48-A. Retirement on completion of 20 years' qualifying
service
(1) At any time after a Government servant has completed
twenty years' qualifying service, he may, by giving notice of not
less than three months in writing to the appointing authority, retire
from service.
Provided that this sub-rule shall not apply to a Government
servant, including scientist or technical expert who is -
(i) on assignments under
the Indian Technical
and Economic
Cooperation (ITEC)
Programme of the
Ministry of External
Affairs and other aid
programmes,
(ii) posted abroad in
foreign based offices of
the
Ministries/Departments,
(iii) on a specific contract
assignment to a foreign
Government,
unless, after having been transferred to India, he has resumed the
charge of the post in India and served for a period of not less than
one year.
(2) The notice of voluntary retirement given under sub-rule (1)
shall require acceptance by the appointing authority :
Provided that where the appointing authority does not refuse to
grant the permission for retirement before the expiry of the period
specified in the said notice, the retirement shall become effective
from the date of expiry of the said period.
(3) - Omitted
(3- (a) Government
A) servant
referred to in
sub-rule (1)
may make a
request in
writing to the
appointing
authority to
accept notice
of voluntary
retirement of
less than three
months giving
reasons
therefor ;
(b) on receipt of a
request under
clause (a), the
appointing
authority
subject to the
provisions of
sub-rule (2),
may consider
such request
for the
curtailment of
the period of
notice of three
months on
merits and if it
is satisfied
that the
curtailment of
the period of
notice will not
cause any
administrative
inconvenience,
the appointing
authority may
relax the
requirement of
notice of three
months on the
condition that
the
Government
servant shall
not apply for
commutation
of a part of his
pension before
the expiry of
the period of
notice of three
months.
(4) Government servant, who has elected to retire under this rule
and has given the necessary notice to that effect to the appointing
authority, shall be precluded from withdrawing his notice except
with the specific approval of such authority :
Provided that the request for withdrawal shall be made before
the intended date of his retirement.
(5) The pension and 5[retirement gratuity] of the Government
servant retiring under this rule shall be based on the emoluments
as defined under Rules 33 and 34 and the increase not exceeding
five years in his qualifying service shall not entitle him to any
notional fixation of pay for purposes of calculating pension and
gratuity.
(6) This rule shall not apply to a Government servant who -
(a) retires under Rule 29, or
(b) retires from Government
service for being absorbed
permanently in an
autonomous body of a
public sector undertaking to
which he is on deputation
at the time of seeking
voluntary retirement.
EXPLANATION. - For the purpose of this rule the expression
"appointing authority" shall mean the authority which is competent
to make appointments to the service or post from which the
Government servant seeks voluntary retirement."
17. A Division Bench of the Andhra Pradesh High Court in the case
of General Manager, Telecom District, WG, Eluru and Ors. Vs.
N.Lalithama, 2002(1)ALD553 while interpreting Rule 48 A (supra) has
observed that at any time after a Government servant has completed
20 years qualifying service he may, by giving notice of not less than
three months in writing to the appointing authority, retire from
service.
18. It is not in dispute that request made on behalf of the petitioner
to seek voluntary retirement on various dates as referred to above
was never withdrawn. However, there is no cogent reason which is
forthcoming which may justify the request for voluntary retirement
made by the petitioner being denied despite the medical condition of
the petitioner, which is the reason given by him for seeking voluntary
retirement.
19. If a person is not well and is suffering from a disease like
epilepsy to expect from him that he will perform his duties of a police
man which requires alertness and physical fitness at all times will be
only acting against common sense. In such a case initiating
departmental enquiry against him merely on the basis of absence of
six days and one hour and twenty minutes indicates victimization on
the part of the respondents on account of mala fides for which
specific allegations have also been made by the petitioner against the
fourth respondent.
20. it is quite possible that such person may not be able to defend
himself diligently in a departmental enquiry initiated against him. It
has come on record that he had been requesting the enquiry officer
to postpone the enquiry by keeping it at abeyance on account of his
medical ill health but this has also not been found favour. The
foremost thing which is strange is that once a person after 28 years of
service on account of physical illness is seeking voluntary retirement
for which he is entitled as per Rule 48 A to make such an application,
rejecting such an application without any cogent reasons cannot be
justified.
21. Taking all these facts into consideration, we are of the
considered view that the order passed by the Tribunal, which is in
complete ignorance of these material facts, the order passed by the
Disciplinary Authority as well as the Appellate Authority cannot be
sustained in the given facts of this case. However, such a person
being not in a position to join duties, we do not propose to send him
back to serve. We direct the respondents to accept petitioner's
request for voluntary retirement from 4.9.1996 i.e. the date on which
he first made the request for voluntary retirement and to retire him in
terms of Rule 48A of the CCS Pension Rules. Consequently, the
respondents would also release all retiral benefits to the petitioner as
may become due to him including invalid pension in terms of Rule 38
within a period of three months.
22. With these observations, the writ petition is disposed of with no
orders as to costs.
MOOL CHAND GARG, J.
SEPTEMBER 23, 2010 PRADEEP NANDRAJOG, J.
'dc'
