Madras High Court
R.Dhanasekaran vs Union Of India on 29 July, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Order dated : 29.07.2022
Writ Petition No.10813 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.07.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition No.10813 of 2015
R.Dhanasekaran ... Petitioner
Vs.
1.Union of India
represented by its
Secretary to Government,
Ministry of Home Affairs,
New Delhi.
2.The Director General,
C.R.P.F., CGO Complex,
Lodhi Road, New Delhi.
3.The Deputy Inspector General of Police,
Central Reserve Police Force,
Group Centre,
Bhuvaneswar, Orissa State.
4.The Deputy Inspector of Police,
Central Reserve Police Force,
Group Centre, Avadi,
Chennai - 600 065.
5.The Commandant,
No.149 Battalion,
Central Reserve Police Force,
Joy Sagar, Siva Sagar,
Assam. ... Respondents
https://www.mhc.tn.gov.in/judis
1/14
Order dated : 29.07.2022
Writ Petition No.10813 of 2015
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
relating to the order passed by the fifth respondent dated 25.10.2012 in his
order No.P.8-3/2012-149-BN-EC-II and quash the same and to direct the
respondents to reinstate the petitioner into service in the strength of CRPF as
Constable with all monetary benefits.
For Petitioner : Mr.K.Sivakumar
For Respondents : Mr.S.Muthusamy, ACGSC
*****
ORDER
The punishment of dismissal from service issued by the fifth respondent in proceedings dated 25.10.2012 is under challenge in the present writ petition.
2. The brief facts of the case are as follows:
2.1. The petitioner joined as Constable in the Central Reserve Force on 16.09.2004 and completed his training and posed in the 149 Battalion, from which, he was deployed at Kashmir with effect from March 2006. The petitioner was sanctioned earned leave for 30 days with effect from 27.12.2010 to 25.01.2011. He was due to report for duty on 26.01.2011. However, the petitioner had not reported duty. Due to problem in Howrah, he was not in a https://www.mhc.tn.gov.in/judis 2/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 position to reach Guwahati on 26.01.2011 and hence, he was not able to report duty on 26.01.2011, but, he reported for duty on 28.01.2011.
2.2. Again, the fourth respondent sanctioned earned leave for 60 days to the petitioner from 02.01.2012 to 01.03.2012. Due to abdominal pain and severe back pain, the doctors diagnosed as "colitis" and he was not in a position to report duty on 02.03.2012. The Government Vellore Medical College & Hospital, Vellore, issued medical certificate of the petitioner and he produced the same. However, the said medical certificate was not accepted by the respondents and a charge memo was issued under Rule 27 of the CRPF Rules and the following articles of charges were framed:
"ARTICLE - I That the said No.041695939 CT/GD R.Dhanasekaran of C/149 Bn of this Unit, while functioning as Constable/GD in 149Bn, CRPF, proceeded on 60 days E/L sanctioned to him wef 02/01/2012 to 01/03/2012. He was due to report for duty on 01/03/2012 at evening Roll Call. But he failed to do so and overstayed from leave wef 02/03/2012 (FN) willfully without any permission from the competent authority and without any valid reason. This office repeatedly directed him to report for duty or take treatment in CRPF Government Hospital nearest Group Centre/Units/Offices vide this officer letters No.L.II-3/2012-149-EC-II dated 23/04/12, 25/04/12, 15/05/12 and 16/07/2012 but he not report for duty. Above individual forwarded photo copies of medical documents for extension of leave and his medical documents were forwarded to The Medical Superintendent, Government Vellore Medical College & Hospital, Vellore - 632 011, for verification of his medical documents.
Accordingly, verification report received from the same vide Medical https://www.mhc.tn.gov.in/judis 3/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 Superintendent, Government Vellore Medical College & Hospital, Vellore letter No.3601/2012 dated 13/07/2012 that "No material evidence or investigations is available to support the illness" and finally he reported on 03/08/2012 at 1300 hrs i.e after remaining 155 days OSL without any sufficient cause and permission from the competent authority. Thus, the said No.041695939 CT/GD R.Dhanaseakaran of C/149 Bn has committed an act of misconduct in his capacity as a member of the Force under section 10, 11(1) of CRPF Act-1949, which is punishable under Rule 27 of the CRPF Rule-1955.
ARTICLE-II That the said No.041695939 CT/GD R.Dhanaseakaran of (C/149 Bn) of this Unit is overstaying leave. Earlier he was proceeded on 30 days E/L sanctioned to him wef 27/12/2010 to 25/01/2011 permission to avail 25/12/2010, 26/01/2011 GH and 26/12/2010 being Sunday. He was due to report for duty on 26/01/2011 at evening Roll Call. But he failed to do so and overstayed from leave on 27/01/2011 (FN) willfully without any permission from the competent authority and without valid reason. He was reported for duty on 28/01/2011 (FN). Accordingly his OSL period on 27.01.2011 total-01 day was regularized as E/L in continuation to 30 days E/L. This habit of No.041695939 CT/GD R.Dhanasekaran is prejudicial to good order and discipline of the force and punishable under Rule-27 of CRPF Rules-1955."
2.3. The petitioner submitted his explanation denying the charges and not satisfied with the explanation, an Enquiry Officer was appointed, who in turn conducted an enquiry by affording an opportunity to the petitioner. The petitioner participated in the process of enquiry and defended his case by producing the medical certificate issued by the Government Vellore Medical College & Hospital, Vellore. The Enquiry Officer, after conducting enquiry, submitted his final report holding that the charges are held proved. Based on https://www.mhc.tn.gov.in/judis 4/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 such report, the authority competent imposed punishment of dismissal from service. Challenging such order, the petitioner has not preferred any appeal.
3. Learned counsel appearing on behalf of the petitioner mainly contended that the petitioner suffered ulcer problem and therefore, he was not in a position to report to duty immediately. The conduct of the petitioner in not reporting duty was not intentional, but, due to medical grounds. Thus, the order impugned is liable to be set aside. It is contended that the punishment of dismissal from service is excessive and on that ground also, the case of the petitioner is to be considered.
4. Learned Additional Central Government Standing Counsel appearing on behalf of the respondents objected the said contention by stating that the procedure as contemplated under the rules were scrupulously followed and an opportunity was afforded to the petitioner to defend his case and the petitioner could not able to furnish medical records to the satisfaction of the competent authorities. Thus, the competent authorities formed an opinion that the unauthorised absence of the petitioner was willfull and imposed punishment of dismissal from service. Thus, the writ petition is liable to be rejected. https://www.mhc.tn.gov.in/judis 5/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015
5. This Court has considered the rival submissions and perused the materials on record.
6. The allegation against the petitioner is that he overstayed for about 115 days and not reported for duty without any valid reason. The petitioner remained unauthorisedly absent without prior intimation or permission from the competent authorities. Therefore, the disciplinary authority issued a charge memo and conducted an enquiry in accordance with the discipline and appeal rules. The procedure as contemplated under the discipline and appeal rules has been followed in the present case and there is no infirmity as such.
7. The question arises for consideration is whether the disciplinary authority has considered the evidences available on record.
8. In the present case, the findings of the disciplinary authority reveal that the petitioner could not able to produce any acceptable medical documents for the purpose of establishing his absence and its genuinity. No doubt, an employee may remain absent on certain exceptional circumstances due to some reasons beyond his control. However, such exceptional circumstances, which https://www.mhc.tn.gov.in/judis 6/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 prevented him from reporting duty are to be established before the competent authority. For example, if any employee met with an accident or suddenly admitted in hospital due to certain serious illness or certain unforeseen circumstances, which prevented him from reporting duty on account of other reasons, then such circumstances must be established with truth. It is not as if an uniformed personnel can remain unauthorisedly absent in a casual manner with an idea that he can somehow overcome such allegations or misconduct. Such an attempt can never be appreciated by the disciplinary authority or by the Court.
9. No one can deny that there may be certain circumstances for a person to remain unauthorisedly absent. However, such unauthorised absence must be satisfied by producing all relevant records and narrating the facts and circumstances cogently. Anyone can understand the genuinity, if sufficient records are produced. More so, the disciplinary authority, in such circumstances, is expected to take a lenient view. Though unauthorised absence in uniformed service is a grave misconduct, if an employee is able to establish certain circumstances, then a lenient view would be taken by the competent authority. However, if an employee is unable to prove any such circumstances https://www.mhc.tn.gov.in/judis 7/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 then the competent authority has no option but to impose major penalty. These are all the lines to be drawn with reference to the allegations or unauthorised absence.
10. In the present case, the findings of the Enquiry Officer, which was accepted by the disciplinary authority, reveal that Central Reserve Police Force No.041695939 CT/GD R.Dhanasekaran of 149 BN of this unit while functioning as Constable/GD in 149 BN CRPF proceeded on 60 days EL sanctioned to him with effect from 02.01.2012 to 01.03.2012. He was due to report for duty on 01.03.2012 (FN). But, he remained unauthorisedly absent without prior permission from the competent authority and without valid reason. The office repeatedly directed him to report for duty or take treatment in CRPF Government Hospital nearest Group Centre/Units/Offices vide its office letter No.L.11-3/2-12-149-EC-II dated 23.04.2012, 25.04.2012, 15.05.2012 and 16.07.2012, but he did not report for duty. However, the charged official forwarded photo copies of medical documents for extension of leave and his medical documents were forwarded to the Medical Superintendent, Government Vellore Medical College & Hospital, Vellore - 632 011 for verification. Upon verification, the Medical Superintendent, https://www.mhc.tn.gov.in/judis 8/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 Government Vellore Medical College & Hospital, Vellore, issued Letter No.3601/2012 dated 13.07.2012 stating that "no material evidences or investigations are available to support his illness". Finally, the petitioner reported for duty on 03.08.2012 at 13.00 hours, that is, after 155 days of overstay of leave without any sufficient cause or prior permission from the competent authority. Based on the above fact, the disciplinary authority formed an opinion that the charged official has committed an act of misconduct in his capacity as a member of the Force u/s.10 and 11(1) of the CRPF Act, 1949, which is punishable under Rule 27 of the CRPF Rules, 1955.
11. On analysis of the findings, one can form an opinion that the petitioner was provided with an opportunity to report for duty on several occasions by the competent authority. The medical certificate produced by the petitioner was not trusted upon by the competent authority and the certificate was sent to the Government Vellore Medical College & Hospital, Vellore, for verification. The Medical Superintendent, Government Vellore Medical College & Hospital, Vellore, sent a reply stating that there is no material or investigation is available to support his illness. Therefore, the competent authority formed an opinion that the medical certificate produced by the https://www.mhc.tn.gov.in/judis 9/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 petitioner was not trusted upon and therefore, formed an opinion that the petitioner had intentionally overstayed on leave and therefore, imposed penalty of dismissal from service.
12. Members of the uniformed Forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these Forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the Forces. In such Forces, desertion or unauthorised absence is a serious matter. The only issue to be considered is that whether such uniformed personnel remain absent on certain genuine grounds or otherwise. If the uniformed personnel is able to establish that he remained unauthorisedly absent on certain genuine grounds, which is acceptable to the disciplinary authority, then alone a lenient view is possible, but, not otherwise.
13. This Court, with anguish, record that the medical practitioners/Government doctors are issuing false medical certificates to the employees working in Government sectors and to the uniformed personnel in a clandestinely manner. In fact, those doctors are issuing false certificates without even conducting any medical examination. Rather, such medical https://www.mhc.tn.gov.in/judis 10/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 certificates are issued in a casual manner for monetary consideration. Issuance of such certificates will cause great prejudice to the system wherein maintenance of discipline is of paramount importance. Take a case where such certificates were relied on by the police force officials, then such indisciplined personnel will be exonerated. Therefore, such certificates are paving way for the authorities to exercise their discretion to accept or not to accept such certificates, which would cause greater damage to the disciplined force. In the present case, the competent authority already sent the certificate for verification. Mostly such practice is not followed by the authorities in general. Some authorities, by discretion or on extraneous consideration, may accept such medical certificates. Thus, there cannot be scope for exercising discretion by the competent authorities, which would also cause further indiscipline in exercise of powers by such disciplinary authority. This is exactly is the reason why the power of discretion is to be exercised judiciously and with reference to the documents, wherein, the genuinity is to be ascertained.
14. In this regard, the respondents are bound to initiate appropriate steps to address the Government of India so as to apprise this issue before the Medical Council of India, who, in turn, has to issue necessary instructions to https://www.mhc.tn.gov.in/judis 11/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 the respective State Medical Council and initiate all appropriate action against the Government doctors/medical practitioners, who issued such false medical certificates to the Government employees and uniformed personnel. Once the medical certificates issued by the Government doctors are found to be not genuine/bogus or issued without conducting medical examination, then, those doctors are also committing misconduct under the conduct rules of the Medical Council of India and all appropriate actions are to be initiated against such doctors. Unless these practices are followed, it would be difficult to control the practice of issuing false medical certificates to the Government employees and uniformed personnel. Thus, it is imminent that appropriate steps to be taken by the authorities concerned to take up the matter to the Medical Council of India and with the respective State Medical Councils to ensure that the medical certificates issued by the doctors are always genuine and issued by conducting proper medical examinations.
15. False medical certificates affects the public administration, mostly, result in inefficiency in administration. If employees proceed on medical leave based on the false medical certificates and such practice is allowed to continue then the employees will try to do so, which would ultimately cause prejudice to https://www.mhc.tn.gov.in/judis 12/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 the interests of the public, which is an unconstitutional act. Therefore, the issuance of false certificates to Government employees/uniformed personnel is an important issue, which is to be addressed by the competent authorities to the Medical Council of India and to the medical institutions, wherefrom such doctors are issuing false medical certificates for getting monetary considerations and without conducting proper medical examination.
16. As far as the case on hand is concerned, the office of the respondents repeatedly directed the petitioner to report for duty and an alternate option was also provided to the petitioner to take treatment in CRPF Government Hospital or nearest Group Centre/Units/Offices. When the petitioner has not chosen to take treatment in CRPF Government Hospital or nearest Group Centre, then the bonafide is not established and the genuinity on the part of the petitioner cannot be trusted upon. Thus, the intentional overstay is established in this case. When an intentional overstay/unauthorised absence is established, then there is no possibility of taking a lenient view either by the disciplinary authority or by the Court of law. Thus, this Court does not find any infirmity in respect of the penalty imposed on the petitioner.
https://www.mhc.tn.gov.in/judis 13/14 Order dated : 29.07.2022 Writ Petition No.10813 of 2015 S.M.SUBRAMANIAM., J gm Accordingly, this writ petition stands dismissed. No costs.
29.07.2022 Index : Yes Speaking order gm To
1.The Secretary to Government, Union of India Ministry of Home Affairs, New Delhi.
2.The Director General, C.R.P.F., CGO Complex, Lodhi Road, New Delhi.
3.The Deputy Inspector General of Police, Central Reserve Police Force, Group Centre, Bhuvaneswar, Orissa State.
4.The Deputy Inspector of Police, Central Reserve Police Force, Group Centre, Avadi, Chennai - 600 065.
5.The Commandant, No.149 Battalion, Central Reserve Police Force, Joy Sagar, Siva Sagar, Assam.
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