* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th August, 2011
+ W.P.(C) 4559/1997
EX.CT. SATYENDER KUMAR ..... Petitioner
Through: Mr.S.M.Dalal, Advocate
versus
UOI & ORS. ..... Respondent
Through: Mr.Bhupinder Sharma,
Dy. Comdt., BSF
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, a constable with BSF, was granted 45 days
earned leave on stated grounds of his mother being ill w.e.f.
14.9.1994 to 28.10.94.
2. Required to rejoin on 29.10.1994, petitioner did not rejoin
duty. A call up letter was sent at his residential permanent
address on 12.11.1994. Petitioner did not respond.
W.P. (C) No. 4559/1997 Page 1 of 9
3. An Apprehension Roll was issued with a request to the
Superintendent of Police, District Sonepat, since the petitioner
resided in a village in District Sonepat, to apprehend the
petitioner and hand him over to the nearest battalion Head
Quarter. The Apprehension Roll was returned unexecuted with
the report that the family members and fellow villagers informed
the police that the petitioner had left his house to join his unit at
Kupwarah, Jammu and Kashmir.
4. A Court of enquiry was ordered which opined that in the
absence of any communication received from the petitioner, his
absconding amounted to willful absenting from discharging duties
i.e. unauthorized absence without sufficient cause. Suitable
action was directed to be taken.
5. Since the petitioner had gone missing, the Commandant
opined that it would be not feasible to hold an enquiry and thus, a
show cause notice was sent to the petitioner at his permanent
address requiring the petitioner to show cause as to why he
should not be dismissed from service. Petitioner did not respond
to the show cause notice and as a result thereof, the
Commandant passed an order terminating the services of the
petitioner on account of unauthorized absence from duty.
6. After he was dismissed from service, petitioner sent a
representation challenging his services being terminated and
along therewith sent photocopies of certain OPD slips as per
which the petitioner had taken treatment for suspected
W.P. (C) No. 4559/1997 Page 2 of 9
Tuberculosis firstly at Hindu Charitable Hospital, Sonepat, then at
BSF Hospital, New Delhi and finally at RBTB Hospital, Mehrauli,
Delhi.
7. The respondents did not pay heed to the same inasmuch as
the order terminating the services of the petitioner had already
been passed and everything was over.
8. Learned counsel for the petitioner urges that the
photocopies of the OPD slips show that the petitioner was being
treated for Tuberculosis and thus would urge that the petitioner
had a sufficient cause not to report for duty.
9. We are hardly impressed with the medical reports,
photocopy of whereof has been placed before us, for the reason
we have detected at least 5 cases where people went to the
government hospitals, picked up OPD cards and wrote self
prescriptions thereon. When inquiries were ordered by this Court,
the hospital concerned categorically stated that the documents
were forged. That apart, the contrivance in the 3 medical
documents can be brought out with reference to the fact that the
one obtained from Hindu Charitable Hospital, Sonepat dated
7.11.1994, records that as an outpatient, the petitioner was given
treatment for PNEUMONITIS from 31.10.1994 to 10.11.1994.
10. As we have already noted hereinabove , a letter was sent to
the petitioner to join back on 12.11.1994. He did not respond to
the letter. Apprehension Roll dated 16.1.1995 could not be
executed as the petitioner was not found in his house and his
W.P. (C) No. 4559/1997 Page 3 of 9
parents told the police officers that the petitioner had left the
village to join the unit.
11. Even the photocopy of the OPD slip at BSF Hospital, Delhi
relied upon being the OPD slip dated 20.3.1995, simply refers to
the fact that the petitioner is a suspected case of Tuberculosis.
No medicine is prescribed therein.
12. We have repeatedly asked learned counsel for the
petitioner that if we take petitioner’s statement at its face value,
at best it would prove that the petitioner was taking treatment as
an outpatient. What prevented the petitioner from reporting to
the unit? No answer.
13. Further, if the petitioner was not in his village and was
staying somewhere in Delhi, what prevented the petitioner to
report to the unit and therefrom be referred to the BSF hospital
for further treatment? No answer.
14. We would highlight that the unit of the petitioner was at
Kupwara in the State of Jammu and Kashmir. The year was 1994.
Militancy was at its peak in the State of Jammu and Kashmir. We
need to highlight that sitting on the current jurisdiction pertaining
to Para Military Forces, all cases of unauthorized absence being
dealt with by us pertain to jawans who were sent on a hard
posting and in each and every case, the claim is similar i.e.
sickness. In all cases OPD cards are obtained, photocopies are
filed. As in the instant case, in no case are we finding any
contemporaneous letter written to the Commandant enclosing
W.P. (C) No. 4559/1997 Page 4 of 9
medical record, praying that leave be extended. In each and
every case, the Apprehension Roll remains unexecuted inasmuch
as the family members told the police that the jawan concerned
had left the village to report for duty. It is apparent that these
persons were not desirous of performing hard duties. They
absconded and created fabricated documents to justify their
absence.
15. We have asked learned counsel for the petitioner that if the
petitioner was indeed a patient of Tuberculosis, where is the
proof that he purchased medicines and consumed the same? We
take judicial notice of the fact that expensive antibiotics have to
be taken to combat Tuberculosis. Would it not be the natural
conduct of a government servant to seek medical
reimbursement? He would.
16. The unanswered questions in this case would be:
i. Where is the proof of the petitioner taking medicines
for Tuberculosis?
ii. Why petitioner left his village telling his parents that
he was joining the unit?
iii. As a patient of Tuberculosis why did the petitioner not
stay in his village so that he could be given care?
iv. Why did petitioner not seek refund of the medical
expenses from the government?
v. Why did petitioner not send an application seeking
leave to be extended with proof of his medical
infirmity?
17. All the unanswered questions coupled with the other facts
noted hereinabove, compel us to hold against the petitioner.
W.P. (C) No. 4559/1997 Page 5 of 9
18. A legal plea has been urged. It is urged that the impugned
action could not be taken under Section 11(2) of the BSF Act read
with Rule 177 of the BSF Rules. It is urged that the inquiry could
not be dispensed with. Similar question was raised and was
answered by a Division Bench of this Court in the judgment and
order dated 21.3.2006 dismissing W.P.(C) No.6577/2002,
Ex.Ct.Akhilesh Kumar Vs. D.G. BSF & Ors. wherein it was opined
as under:-
“Being aggrieved of the aforesaid action this writ
petition is filed on which we have heard the learned
counsel appearing for the parties. Counsel for the
petitioner has submitted before us that the petitioner
was on leave and he was receiving medical treatment
for a head injury. On going through the record we find
that the petitioner had undergone surgery for
Arachanoid Cyst Temporal Lobe. However after the said
period the petitioner joined 30 Bn. BSF on 27 th October,
1995. The petitioner for the said period i.e. from 1st
June, 2000 to 16th July, 2000 was found to be roaming
here and there as stated by his own father. It is also
indicated from the said report submitted by the police
that the petitioner was not interested to rejoin duties.
The petitioner belongs to a disciplined force and
therefore it was incumbent upon him to inform the
respondents regarding his absence even if there was
any difficulty for the petitioner to rejoin the duties. He
ignored all notices issued to him by the respondents
directing him to rejoin his duties. Having no other
alternative, action has been taken against the
petitioner in accordance with the provision of Section
11 of the BSF Act. Under similar circumstances actions
taken by the respondents exercising power under the
same provision of law have been upheld. In that regard
our attention is drawn to a Division Bench decision of
this Court in Ex.Ct.Raj Kishan v. Union of India and
W.P. (C) No. 4559/1997 Page 6 of 9
Others – CWP No.7665/2001, disposed of on 4th
September, 2002. In the said decision also a similar
issue came up for consideration before this Court. It
was held in the said decision that since the show cause
notice issued to the petitioner was in accordance with
law and incorporated the opinion of the Commandant
that retention of the petitioner inservice was
undesirable and since his trial by security force court
was held to be inexpedient and impracticable and
therefore there is no illegality or irregularity in passing
the impugned order. Similar is the situation in the
present case also. Competent authority in the show
cause notice recorded that retention of the petitioner in
service was undesirable and his trial by security force
court was inexpedient and impracticable. Cases of
Gauranga Chakraborty v.State of Tripura reported in
(1989) 3 SCC 314 and Union of India v. Ram Pal
reported in 1996 (2) SLR 297 were also referred to
wherein it was held that the power exercised by a
Commandant under Section 11(2) read with Rule 177
was an independent power which had nothing to do
with the power exercisable by a security force court
and once show cause notice was issued in terms
thereof, no further inquiry was required to be held if the
delinquent person failed to reply to the notice and to
deny the allegations in the process.
Our attention is also drawn by the counsel appearing for
the petitioner to a medical certificate dated 4th
February, 2001 which is placed on record in support of
his contention that the petitioner was indisposed during
the entire period during which he was allegedly absent
unauthorisedly. The said medical certificate is issued by
CMO, Fategarh. On going through the said medical
certificate we find that he was advised rest for the
period from 12th July 2000 to 4th February 2001 which
is the period during which he was unauthorisedly
absent. The said certificate does not state that the
petitioner had undergone any surgery in the said
W.P. (C) No. 4559/1997 Page 7 of 9
hospital of the CMO Fategarh. It was only a certificate
stating that he was suffering from post operative
arachanoid cyst with eplileptic seizure and advised rest
for the aforesaid period. The said operation as already
indicated was done in the year 1992 and we do not find
any reason given in the said certificate for advising rest
to the petitioner for such a long period. Except for that
medical certificate no other contemporaneous record is
placed on record to show that he was ever admitted to
any hospital nor any document is placed on record to
show and indicate that he was purchasing medicines or
he was even examined as an out door patient around
the same time. We have already referred to the report
of the police from which it is indicated that the
petitioner was not in the hospital for the father of the
petitioner would have definitely given such a statement
to the police if it would have been so. Therefore the
aforesaid medical certificate does not inspire confidence
and cannot at all be relied upon.
Considering the facts and circumstances of this case we
are of the considered opinion that ratio of the aforesaid
decisions of this Court as also of the Supreme Court are
squarely applicable to the facts and circumstances of
this case as in the present case also the independent
power vested in the Commandant under Section 11(2)
read with Rule 177 was exercised after issuing show
cause notice to the petitioner in terms thereof.
Therefore we hold that no further inquiry was required
to be held in view of the fact that the petitioner has
failed to file any reply to the show cause notice and to
deny the allegation in the process.
In a recent decision of the Supreme Court in State of
Rajasthan and Another v. Mohammed Ayub Naz
reported in 2006 I AD (SC) 308 the Supreme Court after
referring to many other precedences has held that
absenteeism from office for prolong period of time
without prior permission by the Government servant has
become a principal cause of indiscipline which have
W.P. (C) No. 4559/1997 Page 8 of 9
greatly affected various Government services. It is also
held that in order to mitigate the rampant absenteeism
and wilful absence from service without intimation to
the Government the Government has promulgated a
rule that if the government servant remains willfully
absent for a period exceeding one month and if the
charge of willful absence from duty is proved against
him, he may be removed from service. The Supreme
Court held that the order of removal from service
passed in the said case was the only proper punishment
to be awarded in view of the fact that Government
servant was absent from duty for long period without
intimation to the Government. Ram Pal (supra) is also a
case where action was taken by the respondents under
the provisions of Section 11(2). In the said decision it
was held that once a show cause notice is issued
recording tentative opinion as required, nothing further
was required to be done in the said case as the
employee did not reply to the notice. Therefore it was
held that as there was no denial of the allegation nor
was there any request for holding an inquiry, therefore
the action taken is justified.”
19. We dismiss the writ petition but refrain from imposing costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
August 17, 2011
rs
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