Madhya Pradesh High Court
Keshav Pal Singh vs Union Of India on 20 October, 2016
-( 1 )- W.P. No.6184/2006(S)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(Vivek Agarwal, J.)
W.P.No.6184/2006(S)
.....Petitioner : Keshav Pal Singh.
Versus
.....Respondents : Union of India & Ors.
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Shri M.P.S.Raghuwanshi, learned counsel for the petitioner.
Shri Shashank Indapurkar, learned counsel for the respondents
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ORDER
(20/10/2016) Petitioner has filed this writ petition being aggrieved by the order dated 25.1.2005, whereby the petitioner has been inflicted with punishment of dismissal from service, and the appeal which was filed by the petitioner against the said order has been rejected vide order dated 28.2.2006 passed by respondent No.3.
2. It is submitted by the learned counsel for the petitioner that petitioner was appointed on the post of Seopy (GD) on 28.6.1989 and was given first posting in 63 battalion at Andman and Nikobar. Later on, in the year 1992 he was transferred to other places. In the year 1999, petitioner was posted in Rapid Action Force due to his extraordinary caliber and performance and subsequently on 4.5.2003 petitioner was again transferred to CRPF and was posted at Group Center, CRPF Gwalior when on 26.10.2003 he had obtained one day's casual leave for 27.10.2003 and proceeded to village Poorab to see his aging father. On 27.10.2003 when petitioner was going alongwith his brother and nephew he was intercepted by certain persons and loot was performed and in the process petitioner and his companions were hurt. FIR was sought to be lodged at police
-( 2 )- W.P. No.6184/2006(S) Station, Bela, under Sections 295/397 of IPC, but SHO refused to lodge the FIR, as a result, petitioner's father Gajodhar Singh filed a Criminal Misc. Application under Section 156(3) of Cr.P.C. in the Court of CJM, Auraiya. According to the petitioner, due to loot and physical torture, he has suffered fracture in his right forearm near the wrist and was advised rest of three months, copy of the x-ray report and report of the Radiologist has been enclosed alongwith petition as Annexure P/6. According to the petitioner, he remained under medical treatment till 14.9.2004 and was declared fit to resume his duties on 15.9.2004, but had reported for duty on 11.10.2004. It is the case of the petitioner that he had submitted his permanent address at the battalion and the place of posting while leaving his battalion for leave, but the Enquiry Officer never sent any notice to the petitioner on the said address, therefore, he could not participate in the departmental enquiry and he had not received any notice prior to 25.1.2005 when petitioner had received dismissal order issued by the Additional Director General of Group Center, Gwalior, MP, terminating the services of the petitioner.
3. On the contrary learned counsel for the respondents has submitted that petitioner had never submitted his medical prescriptions to the Battalion or to the disciplinary authority as is required under the law and he had also not submitted any application intimating change of his address as is mandatory under the provisions contained in Rule 10 of the Central Reserve Police Force Rules, 1955. Respondents have also submitted that petitioner had deserted the camp and after expiry of 60 days, communication was made under Rule 31 of the Central Reserve Police Force, 1955 to the effect that if the petitioner did not join on or before 2.4.2004, departmental proceedings will be drawn against the petitioner under Section 11(1) of the of the Central Reserve Police Force Act, 1949. When no reply was furnished to the said notice, Enquiry officer was appointed to conduct the enquiry. Enquiry Officer had sent
-( 3 )- W.P. No.6184/2006(S) notices on the permanent address of the petitioner as was available in the records directing the petitioner to remain personally present, but these notices were not served as it was intimated by the postal authorities that petitioner had left that address, as a result ex parte department enquiry was initiated by the Enquiry Officer and when the enquiry proceedings were going on, petitioner presented himself on 11.10.2004 and made a request to participate in the departmental enquiry. Accordingly, Enquiry Officer supplied all the relevant material to the petitioner and afforded opportunity to the petitioner. It has also come on record and is evident from the order, Annexure P/2, that though ex parte enquiry was completed on 9.10.2004, yet petitioner was provided an opportunity of hearing and he appeared before the Enquiry Officer on 15.10.2004 to submit his version of the story which amounted to providing an additional opportunity to the petitioner. Alongwith his written statement submitted on 15.10.2004, petitioner had submitted certain documents as are enumerated in the order Annexure P/2 and thereafter on 28.10.2004 enquiry report was submitted to the disciplinary authority but the disciplinary authority had returned the documents to the Enquiry Officer to provide another opportunity to the delinquent official for giving his version and that opportunity was afforded and report was forwarded on 27.11.2004. Thereafter, vide letter dated 16.12.2004 petitioner was provided 15 days opportunity to submit his comments on the enquiry report and this notice was served on the petitioner on 17.12.2004 and he had submitted his version on 18.12.2004 which in the opinion of the disciplinary authority was self contradictory. It has also come on record that petitioner had left Shivpuri Camp Hospital without any reason on 13.12.2003 though all the medical facilities were available at Shivpuri Camp Hospital. It has also come on record that doctor at Itawah had declared the petitioner to be fit on 14.9.2004 to resume his duties on 15.9.2004, yet he did not report for duty from
-( 4 )- W.P. No.6184/2006(S) 15.9.2004 to 11.10.2004 when finally he appeared before the Enquiry Officer. Noting all these acts of delinquency, petitioner has been dismissed after giving another opportunity of hearing before passing final punishment order for his unauthorized absence. This order has been duly supported by the learned counsel for the respondents.
4. Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Mohd. Yousuf Vs. Director General of Fire Services Andhra Pradesh & Ors., as reported in (2013) 4 SCC 265. The facts in that case are different. In that case, the Supreme Court deprecated the finding of the High Court holding that High Court erred in exercising jurisdiction under Article 227 of the Constitution and holding ex parte enquiry as well as non-supply of enquiry report to be justified for want of whereabouts of the appellant. In the present case, the petitioner had not submitted change of his address and notices were sent on his permanent address as is mentioned in the service records. Petitioner had never taken any pains for about a year to supply copies of medical certificate or to inform the authorities about his absence due to medical reasons. In the present case, the petitioner had appeared before the Enquiry Officer on 11.10.2004. Thereafter he was provided all the documents, he was given opportunity of hearing and he had appeared before the Enquiry Officer on the various dates noted above. Not only this, the disciplinary authority remanded the matter back to the Enquiry Officer and again Enquiry Officer provided opportunity of hearing to the petitioner. Thereafter, petitioner has submitted his defence on 18.12.2004 and again before passing the impugned order of termination, the petitioner was afforded an opportunity of hearing in person. Thus, facts of the said case being different from the present case, said judgment is distinguishable. Before adverting to the case laws submitted by the learned counsel for the respondents, it will be necessary to advert to medical
-( 5 )- W.P. No.6184/2006(S) prescriptions produced by the petitioner which are part of the medical record. Petitioner has filed document dated 1.11.2003 which only shows fracture of lower 1/3rd shaft of ulna bone of right forearm. There is no mention of fracture of finger. No MLC has been produced. The document dated 31.10.2003 notes various injuries on the body of the petitioner, but again it is very strange that despite so many injuries and as per the story of the petitioner that loot was performed and he was brutally beaten alongwith other companions by the rival parties, no MLC was conducted. There is a medical certificate showing date 13.12.2003 and mentioning that petitioner is suffering from hepatitis and certain other infirmities of right hand and he was advised rest for a period of four weeks. Thereafter, a fitness certificate has been issued by a Physician and Cardiologist at District Hospital, Itawah on 14.9.2004 showing that petitioner was suffering from fracture of right wrist, right middle finger and was under treatment of the said doctor from 4.6.2004 to 14.9.2004. There are no documents on record to show that any complications had taken place and the fracture which was caused on 27.10.2003 took a period of almost 11 months for healing. This creates reasonable doubt about the authenticity of the medical prescriptions produced by the petitioner.
5. Another aspect which is important is that petitioner in his petition has categorically made an averment that petitioner received no notice prior to 25.1.2005 and for the first time on 25.1.2005 he received dismissal order. In this context, file containing enquiry papers is to be examined wherein petitioner had submitted his reply on 15.10.2004 to the Enquiry Officer. Prior to this, on 11.12.2003 he had given an application for payment of salary and in this application it is mentioned that he had reported on duty on 7.12.2003. There is another document dated 12.12.2003 which talks of fracture of lower end of right radius. Earlier certificate, which has been referred, is showing fracture in ulna bone and this certificate gives details of fracture
-( 6 )- W.P. No.6184/2006(S) in radius bone. These certificates do not inspire confidence as they are not only contradictory, but lacks credibility.
6. Learned counsel for the respondents has placed reliance on the judgment of the Supreme Court in the case of Union of India and others Vs. Ram Phal as reported in (1996) 7 SCC 546 wherein the Supreme Court has held that consequent upon continued absence from duty without leave if punishment of dismissal is handed over under such facts and circumstances, then that is justified. Similarly, reliance has been placed on the decision of the Apex Court in the case of Delhi Transport Corporation Vs. Sardar Singh as reported in (2004) 7 SCC 574 wherein it has been held that burden lies on the employee concerned to prove by placing relevant material on record justification for his absence. The Supreme Court has held that absence without obtaining leave in advance shows that the conduct of the employee was irresponsible in extreme and can hardly be justified. In the present case, there was no intimation given by the petitioner regarding his absence for medical reasons and petitioner remained unauthorizedly absent for almost over a period of 11 months from 27.10.2003 to 11.10.2004. He has not given any justification for not joining the duties after being declared fit on 14.9.2004, specially when distance between Itawah and Gwalior is less than 150 kms.
7. In view of the aforesaid judgments and the facts which have come on record, it is apparent that petitioner was provided adequate opportunities to defend and present his case. It is not a case where petitioner was not given opportunity of hearing to prove his innocence. Petitioner could not justify his leaving Shivpuri camp Hospital on 13.12.2003 and further also could not justify his long absence through cogent medical documentation. Petitioner has also failed to justify his absence from 15.9.2004 to 11.10.2004 when he participated in the departmental enquiry. It is also seen that sufficient opportunity was granted to the petitioner to defend himself, and therefore, there was no
-( 7 )- W.P. No.6184/2006(S) violation of principles of natural justice attracting the principles of judgment in the case of Mohd. Yousuf (supra) cited by learned counsel for the petitioner. Thus, the impugned orders being justified under the facts and circumstances of the case, do not call for any interference. Petition fails and is dismissed.
(Vivek Agarwal) Judge ms/-