Orissa High Court
Afr Jeetendra Sahu vs State Of Odisha And Others on 18 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 21183 of 2023
Application under Articles 226 & 227 of Constitution of India.
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AFR Jeetendra Sahu ....... Petitioner
- Versus -
State of Odisha and others ....... Opp. Parties
Advocate(s) appeared in this case:-
_________________________________________________________
For Petitioner : Ms. Babita Kumari Pattanaik, Advocate
For Opp. Parties : Mr. T. Pattnaik
Addl. Standing Counsel.
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
18 October, 2023
SASHIKANTA MISHRA, J.
The petitioner has filed this writ application with the
following prayer:
"It is therefore humbly prayed that this Hon'ble Court
may graciously be pleased to admit the case, call for
the records and after hearing both the parties pass
the following reliefs;
i) To quash the order dtd 24.06.2022 under
Annexure-2.
ii) To quash the order dtd order dtd.4.4.2023 under
Annexure-4.
iii) To direct the opposite parties to treat the period
from 26.5.2022 to 7.6.2022 as commuted leave or EL.
iv) To direct the opposite parties to grant all financial
and consequential benefits.
v) And pass such other order/orders as may be
deemed fit and proper for the interest of justice.
And for this act of kindness, the petitioner as in
duty bound shall ever pray."
2. The facts of the case are that the petitioner was
initially appointed as a Constable on 16.11.2011 and posted
at Bolangir. He was promoted to the post of Havildar on
20.07.2022. In the meantime, in the year 2016, he
underwent treatment for Functional Endoscopy Sinus
Surgery (FESS) with Septoplasty and was advised by his
treating doctor to avoid excess exposure to cold, hot, rain and
humidity condition as also to avoid forceful sneezing. He
therefore, submitted a representation for being entrusted
with general duties, which was allowed. The ailment
resurfaced after five years, for which the petitioner had a
medical check-up at Sum Ultimate Medicare, Bhubaneswar
on 17.12.2021. The Consultant Physician advised him to
undergo CT Para Nasal Sinus examination and also for Sinus
surgery. Because of Panchayat and Urban Local Body
elections in the month of February and March, 2022, the
petitioner was not allowed to apply Earned Leave (E.L.)
during that period. He was granted 20 days E.L. by order
dated 28.03.2022 but because of non-availability of funds,
the petitioner did not avail the said leave and underwent
homeopathic treatment. While continuing as such, he
suffered from Sinusitis on 25.05.2022 and therefore, applied
for leave to the IIC, Bangomunda Police Station for his
medical treatment. He was sent to P.H.C., Bangomunda
along with Constable Girija Kanta Patel for medical
examination and treatment as per Command Certificate
dated 26.05.2022. The doctor at PHC referred him to consult
an ENT Specialist at DHH, Bolangir. On being informed, the
IIC instructed Constable Patel to take the petitioner to DHH,
Bolangir. The petitioner thus, reported before the ENT
Specialist on 26.05.2022, who prescribed certain medicines
and advised home rest till completion of the course of
medicine. Therefore, Constable Patel left the petitioner with
the care of his wife at DHH, Bolangir. The petitioner
underwent medical treatment as an outdoor patient in ENT
Department of DHH, Bolangir from 26.05.2022 to
07.06.2022. He was declared fit by the doctor and joined in
his duties on 08.06.2022. He also submitted his medical
reports but by order dated 24.06.2022 of the S.P., Bolangir,
the period from 26.05.2022 to 08.06.2022 was treated as „No
Pay‟. Feeling aggrieved, the petitioner submitted a
representation before the I.G. of Police (Northern Range),
Sambalpur. However, by order dated 04.04.2023, the
representation was rejected mainly on the ground that the
petitioner had not undergone any surgical procedure and was
treated only as an outdoor patient. Being thus aggrieved, the
petitioner has approached this Court in the present writ
application.
3. A counter affidavit has been filed on behalf of
opposite parties. It is stated that while the petitioner was
posted at Bangomunda Police Station, he was mobilised for
law and order duty in connection with by-election of six
Brajarajnagar Assembly Constituencies of Jharsuguda
District to be held on 31.05.2022. He was commanded by the
IIC, Bangomunda P.S. to report before S.P., Jharsuguda vide
Command Certificate dated 25.05.2022 but the petitioner
refused to perform election duty on the plea that he had
performed such duty at Bolangir during three-tier
Panchayatiraj Election, 2022. Further, he refused to receive
Command Certificate and created a hue and cry and declared
himself sick. All these facts were recorded in the
Bangomunda P.S. General Diary on 25.05.2022 and
26.05.2022. It is further submitted that the petitioner
intentionally avoided to perform election duty as directed and
took the false plea of being sick even though no surgical
treatment had been undergone by him. The period in
question was therefore, rightly treated as „No Pay‟ by the
competent authority.
4. Heard Ms. B.K. Pattanaik, learned counsel for the
petitioner and Mr. T.K. Pattanaik, learned Addl. Standing
Counsel for the State.
5. Ms. B.K.Pattanaik, learned counsel for the petitioner
would submit that there can be no dispute that the petitioner
was sick and was treated at DHH, Bolangir as evident from
the medical documents submitted by him before the
authority. It is also a fact that he was advised rest by the
treating doctor. So, only because there was no surgical
procedure, cannot imply that he was not ill. Secondly, the
allegation that he had refused to receive the Command
Certificate as he wanted to avoid performing election duty is
completely baseless. Therefore, treating the sick period as „No
Pay‟ is completely illegal. Ms. Pattanaik would further submit
that the I.G. did not appreciate the matter in the correct
perspective but was swayed away by the allegation made by
the IIC that the petitioner had intentionally avoided to
perform election duty.
6. Mr. T.K. Pattanaik on the other hand would argue
that police force works on discipline and demands absolute
obedience by the personnel to the orders of the higher
authority. The petitioner grossly violated such discipline by
refusing to receive the Command Certificate issued in his
favour, which is highly unbecoming on his part as a member
of the police force. On facts, Mr. Pattanaik would argue that
as rightly held by the I.G., the petitioner was not suffering
from such a serious ailment as to prevent him from
performing his duties and therefore, his representation was
rightly rejected.
7. It appears that the Command Certificate was issued
by the IIC on 25.05.2022 directing the petitioner (C/415, J.
Sahoo) to report before the S.P., Jharsuguda Camp at RO,
Jharsuguda for by-election duty and to return to P.S. after
the duty is over. At the bottom of Command Certificate it is
endorsed by the IIC that "denied for receive CC". It has been
alleged that the petitioner refused to receive the Command
Certificate on the ground of his sickness and also raised hue
and cry. Such fact has been entered in the General Diary
No.21. Surprisingly however, on the next day, i.e. on
26.05.2022 at 9 a.m., the very same IIC issued Command
Certificate to Constable, C/80 G.K. Patel to take the
petitioner to the hospital for his treatment and to return to
the Police Station thereafter. Again, on the same day at
10.30 a.m. Constable G.K. Patel was directed to take the
petitioner to DHH, Bolangir and to hand him over to his
family after his check up. Firstly, if the petitioner had refused
to receive the Command Certificate for the election duty on
25.05.2022, it is not comprehended as to why such fact was
simply entered in the General Diary and no action was taken
against him. On the contrary, a Command Certificate was
issued to another Constable to take the petitioner for medical
check-up to DHH, Bolangir. This obviously implies that the
IIC was well aware of the sickness of the petitioner as
otherwise there was no reason to depute another constable to
take the petitioner to DHH for treatment. Issuance of both
the Command Certificates therefore, strikes as mutually
contradictory. Be that as it may, the OPD Card issued by
DHH, Bhim Bhoi Medical College and Hospital, Bolangir
refers to the medical condition of the petitioner, the
medicines prescribed and specific advice of the doctor for
home rest, avoiding travelling and allergent conduct. The
petitioner was also directed to follow up after seven days. The
petitioner appeared before the Asst. Professor, ENT on
07.06.2022, who certified that the patient was under the
treatment for Sinusitis and that he is fit to resume his duties.
These facts are corroborated by copies of the documents on
record which have not been specifically denied or disputed by
the opposite parties in their counter. In fact, nothing has
been stated at all about issuance of the Command Certificate
on 25.05.2022 to Constable G.K. Patel. Thus, the averments
of the writ application relating to the petitioner‟s treatment at
DHH, Bolangir having not been specifically denied, the
doctrine of non-traverse would apply in full measure and
hence, would be deemed to have been admitted. Even
otherwise, this Court finds that the order of the S.P. in
treating the period in question (14 days) as „No Pay‟ was
passed without citing any reason whatsoever. Since the order
was passed to the detriment of the petitioner, rules of natural
justice require the S.P. to have granted the petitioner at least
an opportunity of hearing before passing the same. Perusal of
the order passed by the I.G. reveals that he has analysed the
previous and current medical documents and held that on
26.05.2022, the petitioner was treated at DHH, Bolangir and
was prescribed routine medicines of chronic Sinusitis.
Though the OPD card has been referred to yet the specific
advice of the doctor for home rest etc. appear to have been
overlooked by the I.G. in his order. On the other hand, the
so-called circumstantial evidence surrounding the report of
IIC Bangomunda P.S. was accepted in toto by the I.G. This
Court has already noted the apparent incongruity in factual
aspects in that if the petitioner refused to receive the
Command Certificate on 25.05.2022, why no action was
taken against him and instead a fresh Command Certificate
was issued on the next date to another constable to take the
petitioner to the hospital for his treatment. As already
indicated, this appears entirely contradictory. That apart, a
doctor is always the best and most competent person to
opine as regards the condition of a patient. So, if he advised
home rest, such advice cannot be overlooked or ignored. The
further finding of the I.G. that he was prescribed routine
medicines and no special surgical procedure was undergone
by the petitioner, is untenable. It is obviously not in hands of
the petitioner to undergo the surgical procedure on his own.
The same obviously depends on prognosis of the treating
doctor. On the face of clear advice by the doctor for home rest
the above reasoning of the I.G. is rendered untenable.
Moreover, it is not a rule of law that in order to be eligible for
sick leave, the concerned employee must undergo a surgical
procedure.
8. For the foregoing reasons therefore, this Court is of
the considered view that the impugned orders cannot be
sustained in the eye of law and therefore, warrants
interference by this Court.
9. Resultantly, the writ petition is allowed. The
impugned orders dated 24.05.2022 (Annexure-2) and
04.04.2023 (Annexure-4) are hereby quashed. The opposite
party authorities are directed to pass necessary orders to
consider the period from 26.05.2022 to 08.06.2022 as
Commuted Leave or Earned Leave as the case may be. Such
order shall be passed within three weeks from the date of
production of certified copy of this order.
...............................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 18th October, 2023/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack
