Satish Chandra Sharma vs Union Of India & Ors.
2012 Latest Caselaw 92 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.12252/2004

%                        Date of Decision: 05.01.2012


Satish Chandra Sharma                                         .... Petitioner

                       Through   Mr.Anoop Kumar Srivastava, Advocate


                                  Versus

Union of India & Ors.                                      .... Respondents


                       Through Mr.Ravinder     Agarwal,              Central
                               Government Standing Counsel.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

CM No.19240/2011

This is an application by the petitioner seeking early hearing of

the writ petition filed by him against the order of his dismissal from the

Central Reserve Police Force.

The learned counsel for the respondents states that the

application may be allowed and that the writ petition be heard.

For the reasons stated in the application it is allowed.

WP(C) No.12252/2004

With the consent of the parties the writ petition is taken up for

hearing for final disposal.

The petitioner has sought the quashing of the order of dismissal

dated 19th September, 2003 passed by the Commandant 28th Battalion,

CRPF dismissing the petitioner from the service and the order dated

20th March, 2004 passed by DIGP, CRPF dismissing the appeal filed by

the petitioner against his order of dismissal. The petitioner has also

sought the grant of salary and his dues from the date of dismissal upto

the date of reinstatement.

The relevant facts are that the petitioner, a constable (GD) was

posted in B/28, BM, CRPF. The petitioner‟s unit was directed for PTI

course serial No.88 which had to commence from 16th October, 1995.

The petitioner was dispatched to CTC-I, CRPF, Neemuch, M.P. on 12th

October, 1995. While undergoing the said course the petitioner had

developed a knee problem and he was found unfit to continue the

course at Neemuch. The petitioner, therefore, was withdrawn from the

course on the order of the Principal, CTC-I, CRPF and was directed to

return to his unit on 25th November, 1995.

The petitioner started from Neemuch on 26th November, 1995,

however, did not report back to his unit. The petitioner alleged that in

the course of his journey to his unit, he suffered serious illness and he

was helped by the co-passengers to alight the train at Bhopal where

they got him medicines. Some passengers thereafter helped him to

board the train and travel upto Mathura, where the petitioner went to

his in-laws residence and got the desired treatment. The petitioner

alleged that even his wife was undergoing a serious illness and that no

male member was present to look after his wife.

The petitioner contended that he had sent a number of leave

applications dated 12th December, 1995; 15th January, 1995; 5th

February, 1996; 29th March, 1996 and 1st May, 1996 by UPC to his Unit

Commandant. However, a communication dated 15th May, 1996 was

received by him issued by Enquiry Officer directing the petitioner to

appear before the Enquiry Officer and submit his reply for the charges

framed against him. The petitioner alleged that the communication

dated 19th April, 1996 which was received by him on 15th May, 1996

was not accompanied by any chargesheet, statements of prosecution

witnesses and documents relied on and filed during the enquiry

proceedings.

The petitioner reported at the battalion on 25th May, 1996. On

reaching the battalion, he found that the ex-parte proceedings had been

taken against him, which were at the final stage. According to the

petitioner the Enquiry Officer thereafter submitted his report and the

Commandant acting on the Enquiry Report awarded the punishment of

dismissal from service with effect from 11th November, 1996. Aggrieved

by the order of dismissal dated 11th November, 1996 the petitioner

preferred an appeal to the Additional Director General which was

dismissed by order dated 24th October, 1997. Against the dismissal

order dated 11th November, 1996 and the dismissal of his appeal by

order dated 24th October, 1997, the petitioner filed a writ petition being

W.P(C) No.399/1999 before the High Court of Madras. The High Court

allowed the writ petition by order dated 21st March, 2002 holding that

since the proceedings were concluded ex-parte, the petitioner should be

given an opportunity of being heard and the relevant documents should

be served upon him. The documents were sent to the petitioner by post

but they were not received by him and, therefore, in the interest of

justice, the High Court set aside the order of dismissal dated 11th

November, 1996 and the appellate order dated 24th October, 1997 and

directed the respondents to hold a fresh enquiry so that the petitioner

could be afforded an opportunity to defend himself. The High Court of

Judicature at Madras also directed the respondents to conclude the

proceedings as expeditiously as possible.

Pursuant to the order of the High Court of Judicature at Madras

to initiate a de novo enquiry, an Enquiry Officer, Sh. Premvir Singh

Rajora, Second in Command was appointed and the de novo enquiry

was ordered by order dated 5th July, 2002.

Before the Enquiry Officer, the petitioner filed an application to

give him the memorandum of charge in Hindi and he also sought 30

days time instead of 10 days time to file the reply to the charges made

against him. The Hindi version of the memorandum of charge was duly

given to the petitioner.

During the de novo enquiry the Enquiry Officer recorded the

statement of three prosecution witnesses and two defense witnesses

and considered the documents, copies of UPC dated 12th December,

1995, 15th January, 1995, 5th February, 1996, 29th March, 1996 and 1st

May, 1996; sickness certificate issued by the Medical Officer incharge

SHD, Jait, Mathura dated 24th January, 1996, 26th January, 1996 and

23rd May, 1995; OPD slip issued by the Government Homeopathic

Hospital, Jait, Mathura; certificate dated 25th June, 2002 issued by

Dr.Naval Kishore Hospital and Research Centre, Bagh Farzana, Agra

pertaining to Smt.Nirmala wife of Satish Chandra Sharma; a certificate

dated 7th January, 2003 issued by the Ward Councilor regarding

petitioner stating that he was sick with effect from 27th November, 1995

to 23rd May, 1996. After considering the pleas and contentions of the

respondents and the petitioner, the report dated 19th August, 2003 was

given holding that the charge against the petitioner was made out.

However, it was also observed that the petitioner's absence was not

intentional.

The copy of the enquiry report was given to the petitioner on 19th

August, 2003. The petitioner filed the reply to the enquiry report on 30th

August, 2003. The Disciplinary Authority, Commandant 28 Battalion,

CRPF, however, by order dated 19th September, 2003 awarded the

punishment of dismissal from service to the respondent.

While awarding the punishment of dismissal, the Disciplinary

Authority considered the departmental enquiry proceedings, statements

of the petitioner and the prosecution witnesses and the relevant

documents. The Disciplinary Authority reasoned and held as under:-

8. On going through the D.E. proceedings, statement of delinquent, prosecution witnesses and the defence witnesses/documents it is noticed that 3 prosecution witnesses two defence witnesses and the documents as per details given below produced by the said delinquent CT Satish Chandra Sharma in his defence have been examined during the course of inquiry.

i) Copies of U.P.C. (Under postal certificate) date 12.12.95, 15.1.96, 5.2.96, 29.3.96 and 1.5.96.

ii) Sickness certificate issued by the Medical Officer- Incharge, SHD, Jait, Mathura dated 24.1.96, 26.1.96 and 23.5.95 certifying that the said CT Satish Chandra Sharma suffering from hepatitis C GIT and recommending rest for 90 days, 58 days and 60 days respectively.

iii) O.P.D. Slip issued by Govt. Homeopathic Hospital, Jait, Mathura in which he attended as out patient on 27.11.95, 1.12.95, 18.12.95, 2.1.96, 15.1.96, 23.1.96, 3.2.96, 23.2.96, 1.3.96, 6.3.96, 9.3.96, 14.3.96, 1.4.96, 4.4.95, 11.4.96, 18.4.96, 7.5.96 and 14.5.96.

iv) A certificate dated 25.6.2002 issued by Dr.Nawal Kishore Hospital and Research Centre, Bagh Farzana, Agra mentioning that Smt.Nirmala, W/o Satish Chandra Sharma resident of Hathras was under treatment for Primary Starlit/from 14.8.95 to 5.12.95.

v) A certificate dated 7.1.2003 issued by the Ward Councilor mentioning that the said CT Satish Chandra Sharma, resident of Hathras is under sick with effect from 27.11.95 to 23.5.96 and he could not walk and do any thing and under went medical treatment at S.H.D., Jait, Mathura.

vi) Two civilian witnesses named Rajvir Singh and Dhirendra Singh appeared before the Inquiry Officer and witnessed in his defence.

9. On scrutiny of the above documents submitted by the said delinquent in his defence the following lacuna, contradictions have been noticed:-

i) The correspondences reportedly make by the delinquent with this office as well as his company office i.e. B/28 through U.P.C. have neither been received in this office nor by his company office. However, the delinquent has been given an opportunity to check the concerned correspondence file and other relevant documents being maintained in BN Headquarter and Company Offices to ascertain/confirm whether the applications reportedly sent by him for sanction of leave are available on records or not. But no such application seeking sanction of leave are available and it is confirmed by the delinquent after checking the relevant records. Keeping in view above facts, it appears that the documents produced by the individual are fabricated in misguide the departmental proceedings.

ii) On scrutiny of OPD/Prescription slips, only medicines have been prescribed by the consulting doctor and no where he has been recommended rest for the individual in the prescription slip.

It seems that he has willfully absented himself from duty and submitted fabricated certificates to misguide the departmental proceedings.

iii) The OPD slips produced in his defence by the delinquent issued by the Govt. Homeopathic Hospital, Jait, Mathura as mentioned at para 8 (iii) also seems to be obtained to misguide the departmental proceedings. On scrutiny of documents it reveals that he has got himself treated as outdoor patient in a Homeopathic Hospital and was never got himself admitted in any Hospital. Had the delinquent was suffering from serious illness he would have got himself treated at any specialized hospital having adequate facilities instead opting for P.H.C./Homeopathic hospital where adequate facilities are not available.

iv) Certificate issued by Dr.Nawal Kishore Hospital and Research Centre, Bagh, Farzana, Agra has also been produced by the delinquent in his defence in that his wife Smt.Nirmala, Resident of Hathras was under treatment for Primary Sterility from 14.8.95 to 5.12.95. As per the case sheet, the consultation was finally made on 8.12.95 whereas the Doctor of the said Private Clinic certified that the patient was under treatment upto 5.12.95 and signed on the Certificate on 25.6.2002. It is clearly implied that the document in his defence about his wife‟s illness/treatment is managed.

v) A certificate dated 7.1.2003 issued by the Councilor of his Ward after the lapse of almost seven years after his absence from duty. The said Councilor in his certificate states that the delinquent was sick w.e.f. 27.11.95 to 23.5.96 and he was unable to even walk and he was undergoing treatment with S.H.D., Jait, Mathura. This statement is totally contradictory to the medical documents and circumstances. Had the delinquent been so serious and unable to even walk how he was going to attend medical advice from S.H.D., Jait, Mathura so frequently from his home town i.e. Hathras.

vi) It again seems to be well managed plan of the delinquent to misguide the departmental proceeding even though if we admit the statement of the witnesses liberally there is no evidence immersed during above fresh inquiry at

any point of time that delinquent was so seriously ill that he was unable to report for duty for such a long period.

10. I have gone through the finding of the Inquiry proceeding that, the charges framed against the said delinquent No.913227883 CT/GD Satish Chandra Sharma vide Article-I to Annexure-I is proved beyond any doubt that he deserted from the Force while returning to Battalion Headquarter from CTC-I and absented himself from duty and fully agree with the opinion of the Inquiry Officer. On the basis of evidences, witnesses and documents produced during above inquiry, charge framed against above CT Satish Chandra Sharma by the prosecution is fully proved that the delinquent has deserted from the Force while returning back from CTC-I, CRPF, Neemuch to Battalion Headquarter without being permitted/any leave from the competent authority. However, I do not agree with the contradictory remark of the Inquiry Officer that the delinquent could not report back to his duty due to circumstances beyond his control, keeping in view the facts explained in para-9 above.

Further, I have gone through the witnesses/documents produced by the delinquent in his defence carefully, and after going through the defence produced by the delinquent, I come to the conclusion that his willful absence from duty for such a long period was not at all justifiable. It is proved from the medical documents produced by the delinquent that he was got himself treated for his said ailment as an outdoor patient in a S.H.D., Jait, Mathura away from his home town where no specialized facility available.

Had the delinquent was at all concerned about his duties being a member of the Force and really in the need of medical advice instead of opting for getting himself treated in a S.H.D./Homeopathic Hospital, he should have got himself admitted in a Hospital having better facilities. Out of many option available with the delinquent was to approach Base Hospital-I, CRPF, New Delhi which was conveniently located and well linked from his home town/Mathura where he claims to be got treated. The all document in support of his defence is fabricated and result of his after thought to cover-up his willful absent from duties."

Against the order of disciplinary authority dated 19th September,

2003, the petitioner sent an appeal to the Deputy Inspector General of

Police, CRPF; the Inspector General of Police, CRPF and to the Director

General of Police, CRPF. The appeal was dismissed by order dated 20th

March, 2004 by the Deputy Inspector General of Police. While

dismissing the appeal, the Appellate Authority also observed that a

Court of Inquiry was constituted which recommended that the

petitioner be declared as a deserter from the force. The appellate

authority also considered the OPD slips issued by the Government

Homeopathic Hospital and the other documents. It was also held that

had the petitioner actually suffered from a serious illness, he would

have got himself admitted to a hospital where better specialized

treatment/facilities are available. In case he was not in a position to

afford the heavy expenditure, he should have approached the

respondents for financial help or should have consulted the Base

hospital, CRPF, New Delhi which is nearer to his hometown. It was also

held that all the expenditure incurred was in any case reimbursable

under the Medical Attendant Rules.

Against the order dated 19th September, 2003 imposing the

penalty of dismissal from service and the order dated 20th March, 2004

dismissing the appeal, the petitioner has filed the present writ petition

inter-alia on the grounds that the Commandant failed to take into

consideration that the illness suffered by the petitioner during the

journey was on account of not getting the proper treatment at the

Station Hospital, CRPF; that the Commandant had also not taken the

pain to see the OPD slips for outpatient departments which were issued

on account of the serious illness suffered by the petitioner and the fact

that it had not been taken into consideration that he had been advised

complete rest; that the specialized private hospital treatment would

have caused heave expenditure beyond the reach of the petitioner; that

the dismissal order was on account of annoyance of the respondents to

the order of the High Court of Judicature at Madras directing de novo

enquiry; that the fresh enquiry report though had held that the charges

were proved but it also stipulated that the absence of the petitioner was

not intentional; that the punishment of dismissal from the job is almost

a capital punishment, not commensurating with the mistake committed

by the petitioner. The learned counsel for the petitioner has contended

that since the Disciplinary Authority had differed with the findings of

the Enquiry Officer, therefore, the Disciplinary Authority ought to have

given an opportunity of representation to the petitioner and in order to

substantiate this plea, the learned counsel has relied on Punjab

National Bank & Ors v. Kunj Behari Misra, (1998) 7 SCC 84. The

learned counsel for the petitioner has also relied on Yoginath D.Bagde v.

State of Maharashtra & Anr., (1999) 7 SCC 739 in support of his

contention.

The writ petition has been contested by the respondents

contending inter-alia that the petitioner was declared unfit for PTI

course due to knee pain on 8th November, 1995 and therefore

withdrawn from the PTI course and was directed to return to the

Headquarter of 28 Battalion, CRPF, Avadi. In the circumstances it is

contended that the ailment of the petitioner was only knee pain and

that the allegation that he suffered a serious sickness is incorrect. The

respondents also relied on a letter dated 12th December, 1995 by the

petitioner stipulating that on 25th November, 1995 he returned back

from CTC-I, Neemuch and went home as he was not having any money.

The plea raised in the counter affidavit dated 11th April, 2005 on behalf

of respondents is as under:-

"(II) contention of the petitioner that while traveling in train on 26/11/95 he fell ill at Bhopal and alighted there for treatment is a concocted story. Here kind attention is invited into the letter dated nil sent by petitioner to the unit 28 BN which was received in this office on 12/12/95. In his letter he stated that on 25/11/95 he returned back from CTC-I Neemuch and went home as he was not having any money with him."

The respondents asserted in the counter affidavit that the

petitioner was given ample opportunity to defend the charges made

against him in the disciplinary proceedings and both the Disciplinary

and Appellate Authorities have considered all the documents and the

testimonies of the witnesses and after applying their mind, they had

decided to award the punishment of dismissal from service to the

petitioner. It has been contended that the Disciplinary as well as

Appellate Authority are invested with the discretion to impose

appropriate punishment keeping in view the magnitude and gravity of

the misconduct and that the Hon‟ble High Court while exercising the

power of judicial review should not normally interfere with the

punishment imposed by the Disciplinary/Appellate Authority nor

should it substitute the inferences of the Disciplinary and Appellate

Authority with the inferences, if any arrived at by the Court, unless the

findings of the Enquiry Officers and the Disciplinary Authority are

based on no evidence or are so perverse that a reasonable man would

not infer such inferences. The respondents contended that the

principles of natural justice were complied with and that the charges

were proved in the de novo enquiry as well. The Disciplinary Authority

has considered the findings and conclusions of the Enquiry Officer in

his report; the copy of the Enquiry Officer‟s report was given to the

petitioner who had also filed a reply dated 30th August, 2003. Therefore,

the plea of the petitioner that the Disciplinary Authority has differed

with the findings of the Enquiry Officer and the petitioner has not been

given a reasonable opportunity is not correct and sustainable.

The respondents further contended that the documents produced

by the petitioner in defence were not found to be genuine and in any

case the Disciplinary Authority and the Appellate Authority have

imposed the punishment of dismissal after taking into consideration all

the relevant aspects.

The learned counsel for the respondents also relied on the

decision of this Court in W.P(C) No.1518/2001 dated 10th December,

2004 in Laxman Singh Negi v. Union of India & Ors;; CWP

No.2012/1994 decided on 16th May, 2001 titled as „Shri Nankku Kumar

v. Union of India & Ors‟; CWP No.4958/2000 decided on 6th December,

2001 titled as „Khushi Ram v. Union of India & Ors.‟; W.P(C)

No.6903/2002 decided on 30th September, 2004 titled as „Ex.Ct.(GD)

Ravinder Kumar v. Union of India & Ors‟ to contend that judicial review

is not an appeal from a decision but review of the manner in which the

decision is made and the power of judicial review is meant to ensure

that the individual receives fair treatment and not to ensure that the

conclusion which the authority reaches is necessarily correct in the

eyes of the Court.

The petitioner had also filed a rejoinder to the counter affidavit

filed by the respondents. In the rejoinder dated 10th February, 2006

filed on behalf of the petitioner to the allegation of the respondents that

the petitioner had sent a letter dated 12th December, 1995 not

indicating his illness as a cause to not reach his base unit after starting

from Neemuch, but instead stating that he was not having money with

him, which is why he went to his in laws‟ home, was not denied

specifically. In reply to para II of the reply to the grounds of the petition

the petitioner contented as under:-

"(I&II). The contents of Para IX of the reply are not correct in its entity as there is 45 days of gap lie between the date of detailed for PTI course and the date whenever petitioner fell ill. The contention that petitioner deserted enroute deliberately at his own, went to his home town and remained absent from duties and the sever illness alongwith alighted at Bhopal is a concocted story, is very objectionable as petitioner in this reference has produced the medical certificates and the witnesses, that are enough to prove that situation was beyond his control."

This Court has heard the learned counsel for the parties in detail.

The Disciplinary Authority while passing the order dated 19th

September, 2003 has taken into consideration all the documents

produced by the petitioner and the testimonies of the defence witnesses

and the petitioner. Regarding the alleged correspondence, the leave

applications, the petitioner was even given an opportunity to check the

file and other relevant documents maintained in the Bn. Headquarter

and company offices to ascertain/confirm whether the petitioner‟s

alleged applications were available on records or not. It had transpired

that no application seeking sanction of leave were available on the

record and even the petitioner had confirmed the same that his

applications were not on the record. There is no allegation against the

respondents that the officials of the respondents were biased or had

tampered with the official record or would have removed the alleged

applications for leave sent by the petitioner. In support of his

allegations that the leave applications were sent by him the petitioner

has produced the UPC certificates dated 12th December, 1995, 15th

January, 1995, 5th February, 1996, 29th March, 1996 and 1st May, 1996

which have not been believed.

Though before the Enquiry Officer and the Disciplinary Authority

the letter dated 12th December, 1995 has not been produced, however,

in the counter affidavit it was contended by the respondents specifically

that in his said letter he had categorically stated that while returning on

25th November, 1995 from CTC-I, Neemuch he went home as he was not

having any money and he had not disclosed anything about his illness.

This plea of the respondents has not been denied by the petitioner in

the rejoinder filed by him. In the circumstances, if the Disciplinary

Authority has disbelieved the UPC certificates produced by the

petitioner, the same cannot be faulted and there is no reason to come to

a different finding by this Court. In any case in exercise of its review

jurisdiction, this Court does not have to re-appreciate the evidence and

arrive at its own conclusions. The inferences drawn by the Disciplinary

Officer cannot be termed perverse. What is to be further seen is whether

the petitioner was given reasonable opportunity during the enquiry and

whether the principles of natural justice were complied with or not and

that the findings or conclusions are based on some evidence. The

Disciplinary Authority is the sole judge of the facts. Adequacy of

evidence or reliability of evidence in the facts and circumstances cannot

be permitted to be canvassed before this Court, as has also been held

by the Supreme Court in B.C.Chaturvedi (Supra) relied on by the

respondents. The learned counsel for the petitioner has not produced

the copy of the de novo enquiry report dated 9th April, 2003. This has

not been disputed by the learned counsel for the petitioner that the

Enquiry Officer had also held that the charges were proved against the

petitioner beyond any doubt.

Though it has been alleged in the writ petition that the Enquiry

Officer had also held that the absence of the petitioner was not

intentional but was compelled by the circumstances beyond the control

of the petitioner, however, there is nothing on record to substantiate

this allegation of the petitioner. In any case, in response to the enquiry

report dated 9th April, 2003, the petitioner had filed a reply dated 30th

August, 2003, the copy of which has also not been filed by the

petitioner. In the appeals filed against the order of punishment dated

19th September, 2003 to the Deputy Inspector General of Police,

Inspector General of Police and to the Director General of Police, copies

of which are enclosed with the writ petition as annexures P6, P7 and

P8, no such ground has been taken that the Disciplinary Authority had

differed with the findings of the Enquiry Officer and, therefore, the

Disciplinary Authority ought to have issued the dissenting note to the

petitioner. Rather the report submitted by Sh.P.S.Rajora, the Second in

Command, who had conducted the de novo enquiry, had clearly set out

that the petitioner had violated the rules of CRPF and that the charges

framed against him were proved. If it had been held that the charges

were made out against the petitioner, it could not be observed that his

absence was not intentional. If the absence of the petitioner was not

intentional, the charge would not have been made out. In the

circumstances it cannot be held that the Disciplinary Authority had

differed with the findings of the Enquiry Officer as has been alleged on

behalf of the petitioner.

In any case before the Disciplinary Authority, the petitioner was

given a full opportunity, as he had filed the reply to the enquiry officer‟s

report who has taken into consideration all the documents relied on by

the petitioner and his reply in detail. The writ petition against the order of

dismissal seeking judicial review is not an appeal from the decision of

dismissal but a review of the manner in which the decision has been made.

The power of judicial review is meant to ensure that the individual had

received fair treatment and not to ensure that the conclusion which the

authority reached is necessarily correct in the eyes of the Court. Reliance for

this can be placed on (1995) 6 SCC 749, B.C.Chaturvedi v. Union of India &

ors where Supreme Court at page 759 has held as under:-

12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The Disciplinary Authority has categorically given a finding that

on the scrutiny of the OPD/prescription slips, it is apparent that only

the medicines had been prescribed by the consulting doctor and that

these prescriptions do not recommend rest for the petitioner in any

manner. In the circumstances, it has been inferred that the petitioner

willfully absented from the duty and submitted fabricated certificates to

misguide the departmental proceedings. Regarding the OPD slips of the

Government Homeopathic Hospital, Jait, Mathura it has been inferred

that the documents revealed that the petitioner got himself treated as

an outdoor patient and never got himself admitted. Had the alleged

sickness suffered by the petitioner been so acute so as to immobilize

him to an extent that he could not travel to his unit, he would not have

remained as an outdoor patient, but would have instead got himself

treated at any specialized hospital by getting himself admitted, as all

the medical expenditure if incurred by him, was reimbursable.

In case the petitioner could go to the Homeopathic Hospital as an

outdoor patient, the petitioner could also go to the base hospital of the

respondents for treatment. The reasoning of the Disciplinary Authority

cannot be termed to be perverse. The certificate issued in respect of the

wife of the petitioner has also been considered and it has been inferred

that though it stipulates that the treatment given to her was for primary

sterility and it was given from 14th August, 1995 to 5th December, 1995,

however, final consultation was made on 8th December, 1995 and the

certificate was signed on 26th June, 2002. In the circumstances, the

inference by the Disciplinary Authority that the certificate regarding the

wife‟s illness and treatment has been managed cannot be faulted.

Similarly, the certificate dated 7th January, 2003 issued by the

Councilor of the ward after the lapse of almost 7 years since his

absence from duty has also been disbelieved. The learned counsel for

the petitioner has not been able to show any such facts or grounds on

the basis of which it can be inferred that the inferences of the

Disciplinary Authority are so perverse or unreasonable that an ordinary

person would not be able to draw such inferences. The learned counsel

for the petitioner has not been able to show any patent error on the face

of the record or that the inferences of the Disciplinary Authority are

based on no evidence at all so as to entail any interference by this

Court.

The plea of the learned counsel for the petitioner that the ratio of

the precedent relied on by him in the case of Punjab National Bank &

Ors (Supra) shall also be applicable in the case of CRPF is also not

acceptable. In the instant case the Supreme Court had interpreted the

regulations of the Punjab National Bank especially regulation 7

detailing the procedure as to what is to be done on submission of the

enquiry report. The said regulation contemplates that if the Disciplinary

Authority disagrees with the findings of the Enquiry Authority or any

article of charge and records its reason for such disagreement and

records its own findings on such charge, if the evidence on record is

seen for the purpose, then such disagreement has to be communicated

to the delinquent officer. In the case of the petitioner the Enquiry Officer

gave a report that the charges against the petitioner were made out and

in the circumstances the Disciplinary Authority has not disagreed with

the report of the Enquiry Officer. The Enquiry Officer is alleged to have,

however, submitted that this was not intentional. Against the Enquiry

Officer‟s report the petitioner made his representation which was

considered by the Disciplinary Authority who has given cogent reasons

in his order to infer that the documents relied on by the petitioner were

not reliable. Consequently on the basis of the ratio of Punjab National

Bank & Ors (Supra) the petitioner is not entitled for any relief.

Similarly, in Yoginath D.Bagde (Supra) it was held that the Disciplinary

Authority before confirming its final opinion has to convey to the

charged employee its tentative reasons for disagreeing with the findings

of the Enquiry Officer. In the instant case relied on by the petitioner the

show cause notice issued to the delinquent officer did not meet the

requirement that the disagreement has to be tentative. If the

Disciplinary Authority had taken a final decision to disagree with the

report of the Enquiry Officer before issuing the show cause notice then

the requirement of a tentative disagreement is not made out. Apparently

the case relied on by the petitioner‟s counsel is distinguishable.

In the totality of facts and circumstances the orders of

Disciplinary Authority and the Appellate Authority suffers from no

illegality, irregularity or any such perversity which shall require the

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition is without any merit

and it is, therefore, dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 05, 2012.

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