Ex.Ct.Satyender Kumar vs Uoi & Ors.
2011 Latest Caselaw 3987 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                            Date of decision: 17th August, 2011

+                        W.P.(C) 4559/1997


        EX.CT. SATYENDER KUMAR                ..... Petitioner
                      Through: Mr.S.M.Dalal, Advocate

                         versus


        UOI & ORS.                            ..... Respondent
                         Through: Mr.Bhupinder Sharma,
                                  Dy. Comdt., BSF

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J.

1. The petitioner, a constable with BSF, was granted 45 days earned leave on stated grounds of his mother being ill w.e.f. 14.9.1994 to 28.10.94.

2. Required to rejoin on 29.10.1994, petitioner did not rejoin duty. A call up letter was sent at his residential permanent address on 12.11.1994. Petitioner did not respond.

3. An Apprehension Roll was issued with a request to the Superintendent of Police, District Sonepat, since the petitioner resided in a village in District Sonepat, to apprehend the petitioner and hand him over to the nearest battalion Head Quarter. The Apprehension Roll was returned unexecuted with the report that the family members and fellow villagers informed the police that the petitioner had left his house to join his unit at Kupwarah, Jammu and Kashmir.

4. A Court of enquiry was ordered which opined that in the absence of any communication received from the petitioner, his absconding amounted to willful absenting from discharging duties i.e. unauthorized absence without sufficient cause. Suitable action was directed to be taken.

5. Since the petitioner had gone missing, the Commandant opined that it would be not feasible to hold an enquiry and thus, a show cause notice was sent to the petitioner at his permanent address requiring the petitioner to show cause as to why he should not be dismissed from service. Petitioner did not respond to the show cause notice and as a result thereof, the Commandant passed an order terminating the services of the petitioner on account of unauthorized absence from duty.

6. After he was dismissed from service, petitioner sent a representation challenging his services being terminated and along therewith sent photocopies of certain OPD slips as per which the petitioner had taken treatment for suspected

Tuberculosis firstly at Hindu Charitable Hospital, Sonepat, then at BSF Hospital, New Delhi and finally at RBTB Hospital, Mehrauli, Delhi.

7. The respondents did not pay heed to the same inasmuch as the order terminating the services of the petitioner had already been passed and everything was over.

8. Learned counsel for the petitioner urges that the photocopies of the OPD slips show that the petitioner was being treated for Tuberculosis and thus would urge that the petitioner had a sufficient cause not to report for duty.

9. We are hardly impressed with the medical reports, photocopy of whereof has been placed before us, for the reason we have detected at least 5 cases where people went to the government hospitals, picked up OPD cards and wrote self prescriptions thereon. When inquiries were ordered by this Court, the hospital concerned categorically stated that the documents were forged. That apart, the contrivance in the 3 medical documents can be brought out with reference to the fact that the one obtained from Hindu Charitable Hospital, Sonepat dated 7.11.1994, records that as an outpatient, the petitioner was given treatment for PNEUMONITIS from 31.10.1994 to 10.11.1994.

10. As we have already noted hereinabove , a letter was sent to the petitioner to join back on 12.11.1994. He did not respond to the letter. Apprehension Roll dated 16.1.1995 could not be executed as the petitioner was not found in his house and his

parents told the police officers that the petitioner had left the village to join the unit.

11. Even the photocopy of the OPD slip at BSF Hospital, Delhi relied upon being the OPD slip dated 20.3.1995, simply refers to the fact that the petitioner is a suspected case of Tuberculosis. No medicine is prescribed therein.

12. We have repeatedly asked learned counsel for the petitioner that if we take petitioner's statement at its face value, at best it would prove that the petitioner was taking treatment as an outpatient. What prevented the petitioner from reporting to the unit? No answer.

13. Further, if the petitioner was not in his village and was staying somewhere in Delhi, what prevented the petitioner to report to the unit and therefrom be referred to the BSF hospital for further treatment? No answer.

14. We would highlight that the unit of the petitioner was at Kupwara in the State of Jammu and Kashmir. The year was 1994. Militancy was at its peak in the State of Jammu and Kashmir. We need to highlight that sitting on the current jurisdiction pertaining to Para Military Forces, all cases of unauthorized absence being dealt with by us pertain to jawans who were sent on a hard posting and in each and every case, the claim is similar i.e. sickness. In all cases OPD cards are obtained, photocopies are filed. As in the instant case, in no case are we finding any contemporaneous letter written to the Commandant enclosing

medical record, praying that leave be extended. In each and every case, the Apprehension Roll remains unexecuted inasmuch as the family members told the police that the jawan concerned had left the village to report for duty. It is apparent that these persons were not desirous of performing hard duties. They absconded and created fabricated documents to justify their absence.

15. We have asked learned counsel for the petitioner that if the petitioner was indeed a patient of Tuberculosis, where is the proof that he purchased medicines and consumed the same? We take judicial notice of the fact that expensive antibiotics have to be taken to combat Tuberculosis. Would it not be the natural conduct of a government servant to seek medical reimbursement? He would.

16. The unanswered questions in this case would be:

i. Where is the proof of the petitioner taking medicines for Tuberculosis?

ii. Why petitioner left his village telling his parents that he was joining the unit?

iii. As a patient of Tuberculosis why did the petitioner not stay in his village so that he could be given care? iv. Why did petitioner not seek refund of the medical expenses from the government?

v. Why did petitioner not send an application seeking leave to be extended with proof of his medical infirmity?

17. All the unanswered questions coupled with the other facts noted hereinabove, compel us to hold against the petitioner.

18. A legal plea has been urged. It is urged that the impugned action could not be taken under Section 11(2) of the BSF Act read with Rule 177 of the BSF Rules. It is urged that the inquiry could not be dispensed with. Similar question was raised and was answered by a Division Bench of this Court in the judgment and order dated 21.3.2006 dismissing W.P.(C) No.6577/2002, Ex.Ct.Akhilesh Kumar Vs. D.G. BSF & Ors. wherein it was opined as under:-

"Being aggrieved of the aforesaid action this writ petition is filed on which we have heard the learned counsel appearing for the parties. Counsel for the petitioner has submitted before us that the petitioner was on leave and he was receiving medical treatment for a head injury. On going through the record we find that the petitioner had undergone surgery for Arachanoid Cyst Temporal Lobe. However after the said period the petitioner joined 30 Bn. BSF on 27 th October, 1995. The petitioner for the said period i.e. from 1st June, 2000 to 16th July, 2000 was found to be roaming here and there as stated by his own father. It is also indicated from the said report submitted by the police that the petitioner was not interested to rejoin duties. The petitioner belongs to a disciplined force and therefore it was incumbent upon him to inform the respondents regarding his absence even if there was any difficulty for the petitioner to rejoin the duties. He ignored all notices issued to him by the respondents directing him to rejoin his duties. Having no other alternative, action has been taken against the petitioner in accordance with the provision of Section 11 of the BSF Act. Under similar circumstances actions taken by the respondents exercising power under the same provision of law have been upheld. In that regard our attention is drawn to a Division Bench decision of this Court in Ex.Ct.Raj Kishan v. Union of India and

Others - CWP No.7665/2001, disposed of on 4th September, 2002. In the said decision also a similar issue came up for consideration before this Court. It was held in the said decision that since the show cause notice issued to the petitioner was in accordance with law and incorporated the opinion of the Commandant that retention of the petitioner inservice was undesirable and since his trial by security force court was held to be inexpedient and impracticable and therefore there is no illegality or irregularity in passing the impugned order. Similar is the situation in the present case also. Competent authority in the show cause notice recorded that retention of the petitioner in service was undesirable and his trial by security force court was inexpedient and impracticable. Cases of Gauranga Chakraborty v.State of Tripura reported in (1989) 3 SCC 314 and Union of India v. Ram Pal reported in 1996 (2) SLR 297 were also referred to wherein it was held that the power exercised by a Commandant under Section 11(2) read with Rule 177 was an independent power which had nothing to do with the power exercisable by a security force court and once show cause notice was issued in terms thereof, no further inquiry was required to be held if the delinquent person failed to reply to the notice and to deny the allegations in the process.

Our attention is also drawn by the counsel appearing for the petitioner to a medical certificate dated 4th February, 2001 which is placed on record in support of his contention that the petitioner was indisposed during the entire period during which he was allegedly absent unauthorisedly. The said medical certificate is issued by CMO, Fategarh. On going through the said medical certificate we find that he was advised rest for the period from 12th July 2000 to 4th February 2001 which is the period during which he was unauthorisedly absent. The said certificate does not state that the petitioner had undergone any surgery in the said

hospital of the CMO Fategarh. It was only a certificate stating that he was suffering from post operative arachanoid cyst with eplileptic seizure and advised rest for the aforesaid period. The said operation as already indicated was done in the year 1992 and we do not find any reason given in the said certificate for advising rest to the petitioner for such a long period. Except for that medical certificate no other contemporaneous record is placed on record to show that he was ever admitted to any hospital nor any document is placed on record to show and indicate that he was purchasing medicines or he was even examined as an out door patient around the same time. We have already referred to the report of the police from which it is indicated that the petitioner was not in the hospital for the father of the petitioner would have definitely given such a statement to the police if it would have been so. Therefore the aforesaid medical certificate does not inspire confidence and cannot at all be relied upon.

Considering the facts and circumstances of this case we are of the considered opinion that ratio of the aforesaid decisions of this Court as also of the Supreme Court are squarely applicable to the facts and circumstances of this case as in the present case also the independent power vested in the Commandant under Section 11(2) read with Rule 177 was exercised after issuing show cause notice to the petitioner in terms thereof. Therefore we hold that no further inquiry was required to be held in view of the fact that the petitioner has failed to file any reply to the show cause notice and to deny the allegation in the process.

In a recent decision of the Supreme Court in State of Rajasthan and Another v. Mohammed Ayub Naz reported in 2006 I AD (SC) 308 the Supreme Court after referring to many other precedences has held that absenteeism from office for prolong period of time without prior permission by the Government servant has become a principal cause of indiscipline which have

greatly affected various Government services. It is also held that in order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government the Government has promulgated a rule that if the government servant remains willfully absent for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. The Supreme Court held that the order of removal from service passed in the said case was the only proper punishment to be awarded in view of the fact that Government servant was absent from duty for long period without intimation to the Government. Ram Pal (supra) is also a case where action was taken by the respondents under the provisions of Section 11(2). In the said decision it was held that once a show cause notice is issued recording tentative opinion as required, nothing further was required to be done in the said case as the employee did not reply to the notice. Therefore it was held that as there was no denial of the allegation nor was there any request for holding an inquiry, therefore the action taken is justified."

19. We dismiss the writ petition but refrain from imposing costs.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE

August 17, 2011 rs