* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 21st September, 2011
Judgment Pronounced on: 28thSeptember, 2011
+ W.P.(C) 925/1999
DHARAMBIR SINGH ....Petitioner
Through: Mr.Ravindra S.Jaina, Advocate.
versus
UNION OF INDIA & ANR. ...Respondents
Through: Mr.Satya Sahrawat and
Mr.Anuj Aggarwal, Advocates for
Mr.Ankur Chhibber, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The petitioner was enrolled as a Constable in CRPF
and earned a promotion to the post of Head Constable. He was
having some eye ailment and for which he was under medical
treatment of an Ophthalmologist at Postgraduate Institute of
Medical Education and Research Chandigarh in respect whereof
medical record shows that petitioner commenced treatment on
WP(C) 925/1999 Page 1 of 16
7.11.995 which continued till around July 1996. We shall be
referring to the said record soon hereinafter at the relevant
stage. The battalion to which the petitioner was attached was
transferred to Tripura and as would be noted hereinafter, there
are medical documents to show that in the month of August
1996 the petitioner was under treatment for the eye ailment
when he was at Tripura.
2. The petitioner sought 30 days’ leave on account of
the death of his mother. It was sanctioned from 26.8.1996 to
24.9.1996.
3. On 24.9.1996 the petitioner sent a telegram which
was received by the Commandant of the unit on 10.10.1996
under which petitioner sought leave to be extended on the
ground that he was under medical treatment at CRPF Hospital
at Jarodha Kalan.
4. The Commandant informed the petitioner vide letter
dated 15.10.1996 that proper documents pertaining to medical
infirmity should be furnished, failing which the petitioner was
directed to immediately join duties. The petitioner did not join
back and hence on 16.11.1996 the Commandant wrote another
letter to the petitioner to join back.
5. It appears that since the petitioner had informed the
Commandant that he was admitted at the Base Hospital,
Jarodha Kalana, CRPF on 8.11.1996, in response to a
communication, the Chief Medical Officer of the said hospital
had sent a certificate dated 26.11.1996 certifying that the
WP(C) 925/1999 Page 2 of 16
petitioner was fit to join duties. Being in receipt thereof, vide
letter dated 14.1.1997 the Commandant once against required
petitioner to report back. The petitioner did not report back.
On 14.3.1997 proceedings were initiated before a Magistrate to
obtain an arrest warrant as the petitioner was treated as a
deserter. The petitioner could not be located and vide order
dated 15.7.1997 he was declared a deserter.
6. It was only on 24.11.1997 that the petitioner
reported for duty after unauthorized absence of 1 year and 2
months. A charge memo was issued to the petitioner on
4.12.1997 for the misdemeanour of overstaying leave by 426
days.
7. Inquiry Officer was appointed and needless to state
the witnesses of the prosecution proved that the petitioner did
not report back after 30 days’ leave sanctioned to him was
over. Various communications sent by the Commandant to the
petitioner were proved. It was proved that the petitioner never
sent the requisite documents along with a proper application
for medical leave to be sanctioned to him. The petitioner
tendered in evidence a host of documents which showed
petitioner availing medical treatment.
8. Since the petitioner never denied overstaying leave
for 426 days and justified the same with reference to his
medical condition, we eschew reference to such pleadings in
the writ petition where pot shots are being taken at the
prosecution evidence, for the reason the facts of the instant
WP(C) 925/1999 Page 3 of 16
case would reveal that it was the defense which has to succeed
and there was nothing for the prosecution to prove since
absence for 426 days was not in dispute.
9. The petitioner tendered various documents
pertaining to the stated medical treatment availed by him and
we note the same at seriatim as under:-
A. Out Patient Department Card bearing stamp dated
07.11.1995 issued by the Postgraduate Institute of Medical
Education and Research, Chandigarh, having endorsements
pertaining to petitioner visiting the institute and meeting the
doctor on 15.05.1996, 24.05.1996, 21.06.1996 and 05.07.1996.
B. Cash Memos dated 13.11.1995, 27.11.1995 and
8.1.1996 issued by Rana Medical Hall, Chandigarh regarding
purchase of medicine for eye ailment.
C. Instructions dated 05.12.1995, 9.12.1995, 13.5.1996
and 15.6.1996 on a lined copy sheet relating to OPD Card
No.804/1995.
D. Treatment and Investigations sheet bearing stamp
dated 08.01.1996 having prescriptions dated 22.11.1995,
04.12.1995 and instruction for review on 06.05.1996.
E. General Receipt dated 15.04.1996 issued by
Postgraduate Institute of Medical Education and Research,
Chandigarh on account of treatment for refraction.
F. General Receipt dated 17.05.1996 issued by
Postgraduate Institute of Medical Education and Research,
Chandigarh on account of: C.L.
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G. OPD slip dated 08.08.1996 prescribing eye drops
and a review instructions dated 12.08.1996.
H. Cash Memo dated 8.8.1996 issued by Urbashi
Medical Hall, Tripura for purchase of eye drops.
I. Diagnosis dated 19.08.1996 on a lined copy sheet
relating to OPD No.226, having instructions dated 21.08.1996
to report to eye specialist on 26.08.1996.
J. Cash Memo dated 19.8.1996 issued by Medi-Point,
Tripura for purchase of eye drops.
K. OPD card dated 19.9.1996 issued by AIIMS New
Delhi, having diagnosis dated 30.09.1996, 10.10.1996,
14.10.1996, 17.10.1996, 24.10.1996, 04.11.1996, 05.12.1996
and 12.12.1996.
L. Discharge Certificate dated 08.11.1996 issued by
CRPF Base Hospital, New Delhi, evidencing petitioner admitted
for treatment for viral fever and prerenal azotemia on
31.10.1996 and discharged on 8.11.1996 with advice to be on
bed rest for 15 days.
M. Medical Certificate of Fitness and Return Duty,
dated 26.11.1996, issued by Chief Medical officer CRPF New
Delhi.
N. OPD Card issued by AIIMS New Delhi, recording
visits made for check up on 12.12.1996, 30.12.1996,
20.01.1997, 30.01.1997, 03.02.1997 and 17.02.1997.
O. Cash Memos dated 31.12.1996, 18.1.1997 and
17.2.1997 issued by Medicare Chemists, New Delhi.
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P. Cash Memos dated 07.01.1997 and 08.01.1997
issued by Lal Sons Chemists.
Q. OPD Card issued by AIIMS New Delhi recording visits
made for check up on 27.02.1997, 20.03.1997, 27.03.1997,
24.04.1997 and 28.08.1997.
R. OPD Card issued by AIIMS New Delhi recording visits
made for check up on 19.05.1997, 26.05.1997, 02.06.1997,
28.07.1997 and 11.08.1997.
S. Report dated 02.06.1997 by Eye Surgeon of Dr.
Rajendra Prasad Centre for Opthalmic Sciences.
T. Diagnosis on OPD card slip dated 28.08.1997,
08.09.1997, 18.09.1997, 06.10.1997, 27.10.1997, 12.11.1997
and 01.12.1997.
U. Certificate dated 19.09.1997 issued by Dr.Rasik
Vajpayee, AIIMS, New Delhi certifying that Mr. Dharambir Singh
is undergoing treatment for eyes.
V. Undated Cash Memo issued by Arora Medical Store.
W. Prescription dated 13.12.1997 on OPD slip having
instructions dated 20.12.1997 to attend AIIMS.
X. Cash Memo dated 13.12.1997 issued by Usha
Medical Hall.
Y. Diagnosis dated 02.01.1998 on prescription slip
dated 13.12.1997 issued by Medical Superintendent, Tripura.
10. From a perusal of the medical documents filed it is
apparent that the petitioner was having an eye ailment which
required prolonged treatment, but not as a patient admitted at
WP(C) 925/1999 Page 6 of 16
the hospital. The document earliest in point of time is the OPD
Card dated 7.11.1995 issued by Postgraduate Institute of
Medical Education and Research Chandigarh and related
documents pertaining to PGI or Chemists at Chandigarh
showing that till 17.5.1996 the petitioner remained under
treatment at Chandigarh and had been visiting the doctor
concerned at periodic intervals. The record then shows that
the petitioner was in Tripura in the month of August 1996
evidenced from the cash memos pertaining to chemists, listed
at serial No.H and J of para 9 above showing petitioner having
purchased eye drops at Tripura. Record further shows that on
19.9.1996 petitioner had visited AIIMS to consult a doctor when
OPD Card dated 19.9.1996 was issued. Record shows that the
petitioner had been visiting the Ophthalmologist at AIIMS on
various dates till 20.12.1997. Record certainly evidences that
the petitioner had also suffered from viral fever and prerenal
azotemia for which he remained admitted at CRPF Base
Hospital from 31.10.1996 to 8.11.1996 and on being
discharged on 8.11.1996 was advised rest and it was only on
26.11.1996 that the petitioner was certified fit to resume
duties. Record shows that the petitioner was admitted for
short durations at PGI Chandigarh and AIIMS at Delhi for the
eye treatment, but the exact duration during which petitioner
remained admitted cannot be ascertained; none has been
pleaded with clarity in the writ petition.
WP(C) 925/1999 Page 7 of 16
11. The period of unauthorized absence commenced
from 25.9.1996 inasmuch as the petitioner was sanctioned
leave from 26.8.1996 to 24.9.1996 and thus the medical record
produced by the petitioner can safely be put in two parts. Pre
26.8.1996 period and post 26.8.1996 period.
12. The medical record noted at serial No.A to J in para
9 above would reveal that the petitioner had undertaken
treatment for some eye ailment at Postgraduate Institute of
Medical Education and Research at Chandigarh and the nature
of treatment i.e. as an OPD patient shows that the ailment,
though chronic was not of a kind that the petitioner was unable
to perform duties. We call the ailment chronic inasmuch as the
treatment which commenced on 7.11.1995 continued till
August 1996. During this period the battalion to which the
petitioner was attached had been sent to Tripura and thus we
have cash memos detailed at serial No.H and J of para 9 above
which shows that on 8.8.1996 and 19.8.1996 the petitioner
purchased eye drops from a chemist at Tripura.
13. Medical documents listed at serial No.K to X of para
9 above would show that on 19.9.1996 the petitioner went to
AIIMS for treatment of some eye ailment and he made visits to
AIIMS on various dates indicated in the OPD card listed at serial
No.K of para 9 above till 12.12.1996 and in between, contacted
viral fever and prerenal azotemia for which he remained
hospitalized at CRPF Base Hospital from 31.10.1996 to
8.11.1996 and being discharged on 8.11.1996 was advised bed
WP(C) 925/1999 Page 8 of 16
rest for 15 days. And this explains the certificate of medical
fitness dated 26.11.1996 to which we have referred to
hereinabove being issued by the Chief Medical Officer CRPF
that petitioner was fit. The medical documents listed at serial
No.K to Y of para 9 above would show that as an OPD patient
the petitioner had been visiting an Ophthalmologist at AIIMS.
14. Now, there is evidence of petitioner having a chronic
eye ailment and probably he underwent eye surgery at
Chandigarh for a refraction error for the reason the general
receipts dated 15.4.1996 and 17.5.1996 details whereof have
been noted at serial No.E and F of para 9 above show some
kind of surgical intervention performed in the eye of the
petitioner. But, said period is prior to when the petitioner was
granted leave. There is no evidence of petitioner being
hospitalized for any eye ailment during the period of
unauthorized absence.
15. It was urged by learned counsel for the petitioner
that though there is no evidence of petitioner being
hospitalized, there is enough evidence that petitioner was
suffering from a chronic eye ailment and thus counsel urged
that the petitioner had a good reason not to join because
medical facilities at Tripura were not available or were not up
to the mark.
16. That is not the way in which the issue has to be
looked at legally.
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17. It is not in dispute that the CCS (Leave) Rules, 1972
govern the service of the petitioner and we highlight that Rule
7, 14 and 19 of the said Rules are relevant and thus we note
the same. They read as under:-
7. Right to leave
(1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require,
leave of any kind may be refused or revoked by the
authority competent to grant it, but it shall not be open to
that authority to alter the kind of leave due and applied
for except at the written request of the Government
servant.
X X X
14. Application for leave
Any application for leave or for extension of leave shall be
made in Form 1 to the authority competent to grant
leave.
X X X
19. Grant of leave on medical certificate to Gazetted and
non- Gazetted Government servants(1) An application for leave on medical certificate made
by-
(i) a Gazetted Government servant, shall be
accompanied by a medical certificate in Form 3 given by
a Central Government Health Service (CGHS) Doctor if
such a Government servant is a CGHS beneficiary or by a
Government Hospital or by an Authorized Medical
WP(C) 925/1999 Page 10 of 16
Attendant if he is not a CGHS beneficiary; and by an
Authorized Doctor of the private hospital recognized
under CGHS/Central Services (Medical Attendance) Rules,
1944, in case of hospitalization or indoor specialized
treatment duly approved by Competent Authority in
respect of any particular kind of disease like heart
disease, cancer, etc., for the treatment of which the
concerned hospital has been recognized by the Ministry of
Health and Family Welfare:
Provided that the Gazetted Government servant who is a
Central Government Health Service beneficiary, if at the
time of illness, is away from CGHS area or proceeds on
duty outside the Headquarters will produce Medical
Certificate (MC) or Fitness Certificate (FC) in Form 3 and
Form 5, as the case may be, given by an Authorized
Medical Attendant;
(ii) a non-Gazetted Government servant, shall be
accompanied by a medical certificate Form 4 given by a
CGHS Doctor if such a Government servant is a CGHS
beneficiary or by Government Hospital or by an
Authorized Medical Attendant if he is not a CGHS
beneficiary; and by an Authorized Doctor of the private
hospital, recognized under CGHS/Central Services
(Medical Attendance) Rules, 1944, in case of
hospitalization or indoor specialized treatment duly
approved by the Competent Authority in respect of
particular kind of disease like heart disease, cancer, etc.,
for the treatment of which the concerned hospital has
been recognized by the Ministry of Health and Family
Welfare:
Provided that the non-Gazetted Government servant who
is a CGHS beneficiary, if at the time of illness is away
from CGHS area or proceeds on duty outside the
Headquarters will produce M.C. or F.C. in Form 4 or 5, as
the case may be, given by an Authorized Medical
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Attendant (AMA) or by Registered Medical Practitioner
(RMP) if there is no AMA available within a radius of 8
kilometers (kms) from his residence or place of temporary
stay outside his Headquarters and also in the
circumstances when he finds it difficult to obtain MC or FC
from a CGHS Doctor or an Authorized Medical Attendant;
defining as clearly as possible the nature and probable
duration of illness.
(2) A Medical Officer shall not recommend the grant of
leave in any case in which there appears to be no
reasonable prospect that the Government servant
concerned will ever be fit to resume his duties and in such
case, the opinion that the Government servant is
permanently unfit for Government service shall be
recorded in the medical certificate.
(3) The authority competent to grant leave may, at its
discretion, secure a second medical opinion by requesting
a Government Medical Officer not below the rank of a
Civil Surgeon or Staff Surgeon, to have the applicant
medically examined on the earliest possible date.
(4) It shall be the duty of the Government Medical Officer
referred to in sub-rule (3) to express an opinion both as
regards the facts of the illness and as regards the
necessity for the amount of leave recommended and for
that purpose may either require the applicant to appear
before himself or before a Medical Officer nominated by
himself.
(5) The grant of medical certificate under this rule does
not in itself confer upon the Government servant
concerned any right to leave; the medical certificate shall
be forwarded to the authority competent to grant leave
and orders of that authority awaited.
WP(C) 925/1999 Page 12 of 16
(6) The authority competent to grant leave may, in its
discretion, waive the production of a medical certificate in
case of an application for leave for a period not exceeding
three days at a time. Such leave shall not, however, be
treated as leave on medical certificate and shall be
debited against leave other than leave on medical
grounds.
18. A co-joint reading of the Rules would evidence that
leave cannot be claimed as of right and is subject to exigencies
of public service. Secondly, application for leave or extension
thereof has to be made as per Form 1 prescribed and has to be
submitted to the authority competent to sanction leave.
Further, an application seeking medical leave has to be
accompanied by a medical certificate issued by any one of the
authorities specified in clause (i) or clause (ii) of Sub-Rule 1 of
Rule 19 of the Leave Rules.
19. The petitioner never obtained, much less furnished
a certificate from the concerned doctor justifying grant of
medical leave save and except pertaining to petitioner being
treated for viral fever and prerenal azotemia at the CRPF Base
Hospital from 31.10.1996 till 8.11.1996 and it is only the
discharge certificate dated 8.11.1996, detailed at serial No.L of
para 9 above which is in proper format. The remainder i.e.
whether they are certificates or endorsements on OPD cards,
only evidence that the petitioner was undertaking some
treatment for an eye ailment and not that the petitioner was
unfit for duty.
WP(C) 925/1999 Page 13 of 16
20. It is apparent that the petitioner did not comply with
the letter of the law.
21. Learned counsel for the petitioner had urged that if
the spirit of the law is satisfied, it does not matter whether the
letter of the law is satisfied.
22. Leaving the debate open where the antagonist view
would be that as long as there is material to show medical
infirmity, it hardly matters whether the form of the material
conforms to the letter of the law, and the protagonist would
argue that in relation to public service where the tax payer’s
money feeds the mouth of the civil servant and his family a
punctual observance of the letter of the law should be insisted
for the reason an ailment could be of a kind which does not
render a person unfit for duty and such an ailing person must
earn his bread and butter. You cannot just sit back in your
house on an ailment which may be chronic but not of a kind
which renders you unfit for duty. It may be argued by the
protagonist that a civil servant with a chronic but not a
threatening ailment can be assigned light duties and thus he
must report for work.
23. We prefer to decide on the facts of the instant case.
The petitioner is not armed with any medical certificate that he
was unfit for duties except for a short period of 3 weeks, when
he was hospitalized at CRPF Base Hospital. He was taking
treatment as an OPD Patient. This shows that the petitioner
was in his house. It may be true that first class eye treatment
WP(C) 925/1999 Page 14 of 16
is not available at Tripura where the battalion of the petitioner
was stationed, but we see no reason why the petitioner could
not have joined duties and requested that he should be
attached to a battalion of CRPF which was stationed for duties
at Delhi or Chandigarh. He could have produced the medical
papers pertaining to his treatment before the Commandant
who could have obtained an opinion whether medical
treatment required by the petitioner required him to be
stationed at either Delhi or Chandigarh. If the petitioner
required periodic visits to AIIMS, the alternative of sanctioning
medical leave for short durations to enable petitioner to
present himself before the Ophthalmologist would also have
been considered as an alternative.
24. The petitioner could not become a judge in his own
cause. He could not just stay back at Delhi.
25. We must highlight that all cases of unauthorized
absence or desertion being brought before us pertained to
when battalions of CRPF or BSF are transferred to hard areas
and it surprises us that when stationed at peace places, no
officer of CRPF or BSF complains of sickness. Not a single case
of desertion, or unauthorized absence, out of over 250 decided
by us till today pertains to a CRPF or BSF jawan of a battalion
posted in a peace station. Whenever we have called upon
counsel for CRPF or BSF to advance arguments on the quantum
of punishment, they have always highlighted that there is a
tendency of the force personnel to feign sickness or exaggerate
WP(C) 925/1999 Page 15 of 16
minor illnesses to avoid working in hard areas and if this
deviancy is overlooked, it would breed insubordination in the
force because jawans would not obey lawful commands of the
superiors to report back. This would encourage deviant
behaviour by others. Secondly, it has been pointed out to us
that force personnel are sent on leave by rotation and where
one jawan overstays leave, he does so at the cost to some
other(s).
26. We note that the original penalty of removal from
service inflicted by the disciplinary authority has been whittled
down by the appellate authority to one of compulsory
retirement with benefits of pension and gratuity and other
admissible benefits. In other words for the service rendered
the petitioner has been granted due recognition to receive
pensionary benefits.
27. We find no merit in the writ petition which is
dismissed.
28. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
September 28, 2011
mm
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