Orissa High Court
Niranjan Pradhan vs Union Of India And Others on 26 July, 2017
Equivalent citations: AIRONLINE 2018 ORI 446
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
OJC NO. 1427 OF 2000
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Niranjan Pradhan .... Petitioner
AFR
-Versus-
Union of India and others .... Opp. Parties
For petitioner : M/s. D.K. Panda, J. Sengupta,
B.B. Acharya and P.R.J. Dash,
Advocates.
For opp. parties : Mr. K.C. Kar,
Central Government Counsel.
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PRESENT
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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DECIDED ON : 26.07.2017
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DR. B.R. SARANGI, J The petitioner, by means of this writ petition,
seeks to quash order dated 18.08.1997 in Annexure-3, whereby
opposite party no.3 has dismissed him from service, as well as
order dated 02.06.1999 in Annexure-7, whereby opposite party
2
no.2 has rejected his appeal, and also to direct the opposite
parties to reinstate him in service.
2. The fact of the case, in brief, is that pursuant to an
advertisement for recruitment to the post of constable in Central
Reserve Police Force (for short "CRPF"), the name of the
petitioner was sponsored by the employment exchange. He
participated in the process of selection, on being called upon,
and was ultimately selected. As was directed, he joined in the
post on 12.04.1991 at Group Centre, Bhubaneswar. Thereafter,
he was sent for training and on its completion on 31.07.1992, he
joined in the office of Commandant-123 BN, CRPF at
Chandigarh as constable. Subsequently, he was transferred to
different places and discharged his duties assigned to him. While
he was continuing at Nagaland, he received a letter from his
village and applied for earned leave from 18.05.1996 to
08.06.1996, which was sanctioned by the competent authority. While on leave, he suffered from Schizofrena and was admitted at District Headquarters Hospital, Bolangir. When the petitioner was undergoing treatment, his treating doctor was transferred from Bolangir to Baripada. Consequentially, the petitioner moved to Baripada for his treatment under the very same doctor. As the 3 petitioner, at the relevant point of time, was mentally disorder, neither could he extend his leave nor join his duty. 2.1 After recovery from illness, when the petitioner returned his village, he received a letter, wherein it was indicated that he had been dismissed from service with effect from 18.08.1997. It was pointed out therein that a departmental enquiry was ordered under Section 11(1) of the CRPF Act, 1949 read with Rule 27 of CRPF Rules, 1955 on the allegation that he had committed misconduct in the discharge of his duties as a member of the CRPF, and that, though the petitioner was not present, the inquiry officer proceeded with departmental enquiry ex parte and submitted report on 15.05.1997, on receipt of which, opposite party no.3 imposed major penalty of dismissal from service in exercise of power vested under Section 11(1) of the CRPF Act, 1949 read with Rule-27 of the CRPF Rules, 1955. Against the order of dismissal, the petitioner on 04.12.1998 preferred an appeal before the Addl. Deputy Inspector General, CRPF, G.C. Allahabad. But by letter dated 22.12.1998 in Annexure-4, it was intimated to the petitioner that his appeal had been sent to the Commandant, 123 BN, CRPF, Allahabad. Again by letter dated 01.02.1999 in Annexure-5, he was 4 instructed to prefer appeal before opposite party no.2. Accordingly, the petitioner preferred appeal before opposite party no.2 on 09.02.1999. Although in the appeal memo, by filing a medical certificate, it was specifically pleaded by the petitioner that he was suffering from mental disorder and was being treated at Baripada, and shown sufficient cause with regard to delay in filing of the appeal, the appellate authority dismissed the appeal on the ground of limitation, without entering into the merits of the case, by stating that appeal had to be preferred within 30 days from passing of the order by opposite party no.3 and the same, having been preferred after 17 months, was liable to be dismissed.
3. Mr. D.K. Panda, learned counsel for the petitioner states that, as the petitioner was visited with the penalty of dismissal from service by Annexure-3 dated 18.08.1997, pursuant to an ex parte disciplinary proceeding, he preferred appeal, but the appellate authority, without entering into the merits, dismissed the same by Annexure-7 dated 02.06.1999 on the ground of limitation. It is further contended that during the period from 01.06.1996 to 04.11.1998, the petitioner was suffering from Schizofrena and was under treatment. Though the 5 petitioner furnished a valid medical certificate along with the appeal memo, without taking the same into consideration, the appellate authority mechanically dismissed the appeal as barred by limitation. To substantiate his contention, he has relied upon a judgment of the apex Court in Collector, Land Acquisition, Anantnag and Anr. V. Mst. Katiji and Ors., AIR 1987 SC 1353.
4. Mr. K.C. Kar, learned Central Government Counsel appearing for the opposite parties vehemently urged before this Court that, as the petitioner remained unauthorized absent, a proceeding was initiated against him. Due to his non- cooperation, the inquiry officer proceeded ex parte and submitted inquiry report finding him guilty, as a result of which he was dismissed from service by the disciplinary authority. Even though the appeal was preferred, the same was dismissed by the appellate authority, on the ground of limitation, by holding that the petitioner was rendering service in CRPF and he willfully and intentionally disobeyed the lawful orders of the competent authority by remaining absent from duty without any prior intimation. Therefore, the impugned orders passed by the authorities are wholly and fully justified and require no 6 interference by this Court at this stage. To substantiate his submission, he has relied upon the judgment of a Division Bench of this Court in Santosh Ku. Sahu (Dead) after him Sabita Sahu v. Addl. D.I. G.P., GroupCentre, CRPF, BBSR & Anr., 2011 (I) ILR -CUT-712.
5. Having heard learned counsel for the parties and after going through the records, since pleadings between the parties have been exchange, with the consent of learned counsel for the parties, this matter is being disposed of finally at the stage of admission.
6. On perusal of the order impugned passed by the appellate authority, it appears that, save and except the appeal having been dismissed on the ground of limitation, no other reason has been assigned, though the petitioner had substantiated the fact of delay before the appellate authority in preferring the appeal. More so, though contention was raised with regard to merits of the case, the appellate authority has not passed any order on that score. The fact that the petitioner was suffering from Schizofrena for a quite long time, for which he was hospitalized and was under treatment of a government doctor, that by itself was sufficient cause for condoning the 7 delay. The appellate authority should have condoned the delay in preferring the appeal, when in support of his illness the petitioner had filed a valid medical certificate, by considering the same in proper perspective.
7. In Collector, Land Acquisition, Anantnag (supra), the apex Court held that so far as condonation of delay is concerned, liberal approach to be made to subserve the ends of justice. Since the petitioner, in order to substantiate the cause for delay in approaching the appellate authority, had furnished the medical certificate for his illness, the same should have been considered as sufficient cause to condone the delay and opportunity of hearing should have been given to the petitioner to participate in appeal and the appellate authority should have disposed of the same by passing a reasoned order. In spite of doing so, the appellate authority has passed a cryptic order and dismissed the appeal on the ground of limitation, which cannot sustain in the eye of law.
8. In Santosh Kumar Sahu (supra), on which reliance has been placed by the learned counsel for the opposite parties, a departmental proceeding was initiated against the petitioner therein as he remained unauthorized absent from service so also 8 willfully and intentionally disobeyed the lawful orders of the competent authority. In that case, the Division Bench of this Court held that the action taken by the authority dismissing the petitioner from service was justified. The ratio of the said case would not have any application to the present case, in view of the fact that herein the appellate authority, without addressing on merits, dismissed the appeal on the ground of limitation. In absence of any adjudication on merits by the appellate authority, the question, whether the petitioner (in view of his unauthorized absence from duty) willfully or intentionally disobeyed the order of the competent authority, is yet to be considered. As such, enquiry was conducted ex-parte and no opportunity of hearing was given to the petitioner.
9. Considering the matter from all angels, this Court is of the considered view that sufficient cause having been shown by the petitioner, the appellate authority should not have rejected the appeal on the ground of limitation, for which the impugned order dated 02.06.1999 so passed by the appellate authority cannot sustain in the eye of law. Accordingly, the same is hereby quashed and delay in filing the appeal is condoned, The matter is remitted back to the appellate authority for fresh 9 adjudication on merits in accordance with law by affording opportunity of hearing to the petitioner. The entire exercise shall be done within a period of four months from the date of communication of this order.
10. With the above observation and direction, the writ petition is disposed of. No order as to cost.
Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 26th July, 2017, Ajaya True copy Sr. Steno