{"id":158309,"date":"2011-08-17T00:00:00","date_gmt":"2011-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ex-ct-satyender-kumar-vs-uoi-ors-on-17-august-2011"},"modified":"2018-02-13T18:06:56","modified_gmt":"2018-02-13T12:36:56","slug":"ex-ct-satyender-kumar-vs-uoi-ors-on-17-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ex-ct-satyender-kumar-vs-uoi-ors-on-17-august-2011","title":{"rendered":"Ex.Ct.Satyender Kumar vs Uoi & Ors. on 17 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Ex.Ct.Satyender Kumar vs Uoi & Ors. on 17 August, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n                            Date of decision: 17th August, 2011\n\n+                        W.P.(C) 4559\/1997\n\n\n        EX.CT. SATYENDER KUMAR                ..... Petitioner\n                      Through: Mr.S.M.Dalal, Advocate\n\n                         versus\n\n\n        UOI & ORS.                            ..... Respondent\n                         Through: Mr.Bhupinder Sharma,\n                                  Dy. Comdt., BSF\n\n        CORAM:\n        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n        HON'BLE MR. JUSTICE SUNIL GAUR\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\n\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.      The petitioner, a constable with BSF, was granted 45 days
\nearned leave on stated grounds of his mother being ill w.e.f.
\n14.9.1994 to 28.10.94.\n<\/p>\n
2.      Required to rejoin on 29.10.1994, petitioner did not rejoin
\nduty. A call up letter was sent at his residential permanent
\naddress on 12.11.1994. Petitioner did not respond.\n<\/p>\n
W.P. (C) No. 4559\/1997                                Page 1 of 9<\/span><\/p>\n
 3.     An Apprehension Roll was issued with a request to the
\nSuperintendent of Police, District Sonepat, since the petitioner
\nresided in a village in District Sonepat, to apprehend the
\npetitioner and hand him over to the nearest battalion Head
\nQuarter. The Apprehension Roll was returned unexecuted with
\nthe report that the family members and fellow villagers informed
\nthe police that the petitioner had left his house to join his unit at
\nKupwarah, Jammu and Kashmir.\n<\/p>\n
4.     A Court of enquiry was ordered which opined that in the
\nabsence of any communication received from the petitioner, his
\nabsconding amounted to willful absenting from discharging duties
\ni.e. unauthorized absence without sufficient cause. Suitable
\naction was directed to be taken.\n<\/p>\n
5.     Since the petitioner had gone missing, the Commandant
\nopined that it would be not feasible to hold an enquiry and thus, a
\nshow cause notice was sent to the petitioner at his permanent
\naddress requiring the petitioner to show cause as to why he
\nshould not be dismissed from service. Petitioner did not respond
\nto the show              cause notice and as a result thereof, the
\nCommandant passed an order terminating the services of the
\npetitioner on account of unauthorized absence from duty.\n<\/p>\n
6.     After he was dismissed from service, petitioner sent a
\nrepresentation challenging his services being terminated and
\nalong therewith sent photocopies of certain OPD slips as per
\nwhich     the     petitioner    had   taken   treatment   for   suspected<\/p>\n
W.P. (C) No. 4559\/1997                                     Page 2 of 9<\/span>
\n Tuberculosis firstly at Hindu Charitable Hospital, Sonepat, then at
\nBSF Hospital, New Delhi and finally at RBTB Hospital, Mehrauli,
\nDelhi.\n<\/p>\n
7.     The respondents did not pay heed to the same inasmuch as
\nthe order terminating the services of the petitioner had already
\nbeen passed and everything was over.\n<\/p>\n
8.     Learned       counsel    for   the   petitioner   urges     that   the
\nphotocopies of the OPD slips show that the petitioner was being
\ntreated for Tuberculosis and thus would urge that the petitioner
\nhad a sufficient cause not to report for duty.\n<\/p>\n
9.     We     are    hardly    impressed    with   the   medical    reports,
\nphotocopy of whereof has been placed before us, for the reason
\nwe have detected at least 5 cases where people went to the
\ngovernment hospitals, picked up OPD cards and wrote self
\nprescriptions thereon. When inquiries were ordered by this Court,
\nthe hospital concerned categorically stated that the documents
\nwere forged. That apart, the contrivance in the 3 medical
\ndocuments can be brought out with reference to the fact that the
\none obtained from Hindu Charitable Hospital, Sonepat dated
\n7.11.1994, records that as an outpatient, the petitioner was given
\ntreatment for PNEUMONITIS from 31.10.1994 to 10.11.1994.\n<\/p>\n
10.    As we have already noted hereinabove , a letter was sent to
\nthe petitioner to join back on 12.11.1994. He did not respond to
\nthe letter. Apprehension Roll dated 16.1.1995 could not be
\nexecuted as the petitioner was not found in his house and his<\/p>\n
W.P. (C) No. 4559\/1997                                      Page 3 of 9<\/span>
\n parents told the police officers that the petitioner had left the
\nvillage to join the unit.\n<\/p>\n
11.    Even the photocopy of the OPD slip at BSF Hospital, Delhi
\nrelied upon being the OPD slip dated 20.3.1995, simply refers to
\nthe fact that the petitioner is a suspected case of Tuberculosis.
\nNo medicine is prescribed therein.\n<\/p>\n
12.    We     have       repeatedly   asked   learned   counsel    for   the
\npetitioner that if we take petitioner’s statement at its face value,
\nat best it would prove that the petitioner was taking treatment as
\nan outpatient. What prevented the petitioner from reporting to
\nthe unit? No answer.\n<\/p>\n
13.    Further, if the petitioner was not in his village and was
\nstaying somewhere in Delhi, what prevented the petitioner to
\nreport to the unit and therefrom be referred to the BSF hospital
\nfor further treatment? No answer.\n<\/p>\n
14.    We would highlight that the unit of the petitioner was at
\nKupwara in the State of Jammu and Kashmir. The year was 1994.
\nMilitancy was at its peak in the State of Jammu and Kashmir. We
\nneed to highlight that sitting on the current jurisdiction pertaining
\nto Para Military Forces, all cases of unauthorized absence being
\ndealt with by us pertain to jawans who were sent on a hard
\nposting and in each and every case, the claim is similar i.e.
\nsickness. In all cases OPD cards are obtained, photocopies are
\nfiled. As in the instant case, in no case are we finding any
\ncontemporaneous letter written to the Commandant enclosing<\/p>\n
W.P. (C) No. 4559\/1997                                     Page 4 of 9<\/span>
\n medical record, praying that leave be extended. In each and
\nevery case, the Apprehension Roll remains unexecuted inasmuch
\nas the family members told the police that the jawan concerned
\nhad left the village to report for duty. It is apparent that these
\npersons were not desirous of performing hard duties. They
\nabsconded and created fabricated documents to justify their
\nabsence.\n<\/p>\n
15.    We have asked learned counsel for the petitioner that if the
\npetitioner was indeed a patient of Tuberculosis, where is the
\nproof that he purchased medicines and consumed the same? We
\ntake judicial notice of the fact that expensive antibiotics have to
\nbe taken to combat Tuberculosis. Would it not be the natural
\nconduct        of    a   government    servant    to   seek      medical
\nreimbursement? He would.\n<\/p>\n
16.    The unanswered questions in this case would be:\n<\/p>\n
         i.    Where is the proof of the petitioner taking medicines
\n               for Tuberculosis?\n<\/p><\/blockquote>\n
        ii.    Why petitioner left his village telling his parents that
\n               he was joining the unit?\n<\/p><\/blockquote>\n
        iii.   As a patient of Tuberculosis why did the petitioner not
\n               stay in his village so that he could be given care?
\n        iv.    Why did petitioner not seek refund of the medical
\n               expenses from the government?\n<\/p><\/blockquote>\n
        v.     Why did petitioner not send an application seeking
\n               leave to be extended with proof of his medical
\n               infirmity?\n<\/p><\/blockquote>\n
17.    All the unanswered questions coupled with the other facts
\nnoted hereinabove, compel us to hold against the petitioner.\n<\/p>\n
W.P. (C) No. 4559\/1997                                   Page 5 of 9<\/span><\/p>\n
 18.     A legal plea has been urged. It is urged that the impugned
\naction could not be taken under Section 11(2) of the BSF Act read
\nwith Rule 177 of the BSF Rules. It is urged that the inquiry could
\nnot be dispensed with. Similar question was raised and was
\nanswered by a Division Bench of this Court in the judgment and
\norder     dated      21.3.2006   dismissing   W.P.(C)   No.6577\/2002,
\nEx.Ct.Akhilesh Kumar Vs. D.G. BSF & Ors. wherein it was opined
\nas under:-\n<\/p>\n
        “Being aggrieved of the aforesaid action this writ
\n        petition is filed on which we have heard the learned
\n        counsel appearing for the parties. Counsel for the
\n        petitioner has submitted before us that the petitioner
\n        was on leave and he was receiving medical treatment
\n        for a head injury. On going through the record we find
\n        that the petitioner had undergone surgery for
\n        Arachanoid Cyst Temporal Lobe. However after the said
\n        period the petitioner joined 30 Bn. BSF on 27 th October,
\n        1995. The petitioner for the said period i.e. from 1st
\n        June, 2000 to 16th July, 2000 was found to be roaming
\n        here and there as stated by his own father. It is also
\n        indicated from the said report submitted by the police
\n        that the petitioner was not interested to rejoin duties.
\n        The petitioner belongs to a disciplined force and
\n        therefore it was incumbent upon him to inform the
\n        respondents regarding his absence even if there was
\n        any difficulty for the petitioner to rejoin the duties. He
\n        ignored all notices issued to him by the respondents
\n        directing him to rejoin his duties. Having no other
\n        alternative, action has been taken against the
\n        petitioner in accordance with the provision of Section
\n        11 of the BSF Act. Under similar circumstances actions
\n        taken by the respondents exercising power under the
\n        same provision of law have been upheld. In that regard
\n        our attention is drawn to a Division Bench decision of
\n        this Court in Ex.Ct.Raj Kishan v. Union of India and
\nW.P. (C) No. 4559\/1997                                  Page 6 of 9<\/span>
\n        Others – CWP No.7665\/2001, disposed of on 4th
\n       September, 2002. In the said decision also a similar
\n       issue came up for consideration before this Court. It
\n       was held in the said decision that since the show cause
\n       notice issued to the petitioner was in accordance with
\n       law and incorporated the opinion of the Commandant
\n       that retention of the petitioner inservice was
\n       undesirable and since his trial by security force court
\n       was held to be inexpedient and impracticable and
\n       therefore there is no illegality or irregularity in passing
\n       the impugned order. Similar is the situation in the
\n       present case also. Competent authority in the show
\n       cause notice recorded that retention of the petitioner in
\n       service was undesirable and his trial by security force
\n       court was inexpedient and impracticable. Cases of
\n       Gauranga Chakraborty v.State of Tripura reported in
\n       (1989) 3 SCC 314 and Union of India v. Ram Pal<\/a>
\n       reported in 1996 (2) SLR 297 were also referred to
\n       wherein it was held that the power exercised by a
\n       Commandant under Section 11(2) read with Rule 177
\n       was an independent power which had nothing to do
\n       with the power exercisable by a security force court
\n       and once show cause notice was issued in terms
\n       thereof, no further inquiry was required to be held if the
\n       delinquent person failed to reply to the notice and to
\n       deny the allegations in the process.\n<\/p><\/blockquote>\n
       Our attention is also drawn by the counsel appearing for
\n       the petitioner to a medical certificate dated 4th
\n       February, 2001 which is placed on record in support of
\n       his contention that the petitioner was indisposed during
\n       the entire period during which he was allegedly absent
\n       unauthorisedly. The said medical certificate is issued by
\n       CMO, Fategarh. On going through the said medical
\n       certificate we find that he was advised rest for the
\n       period from 12th July 2000 to 4th February 2001 which
\n       is the period during which he was unauthorisedly
\n       absent. The said certificate does not state that the
\n       petitioner had undergone any surgery in the said
\nW.P. (C) No. 4559\/1997                                  Page 7 of 9<\/span>
\n        hospital of the CMO Fategarh. It was only a certificate
\n       stating that he was suffering from post operative
\n       arachanoid cyst with eplileptic seizure and advised rest
\n       for the aforesaid period. The said operation as already
\n       indicated was done in the year 1992 and we do not find
\n       any reason given in the said certificate for advising rest
\n       to the petitioner for such a long period. Except for that
\n       medical certificate no other contemporaneous record is
\n       placed on record to show that he was ever admitted to
\n       any hospital nor any document is placed on record to
\n       show and indicate that he was purchasing medicines or
\n       he was even examined as an out door patient around
\n       the same time. We have already referred to the report
\n       of the police from which it is indicated that the
\n       petitioner was not in the hospital for the father of the
\n       petitioner would have definitely given such a statement
\n       to the police if it would have been so. Therefore the
\n       aforesaid medical certificate does not inspire confidence
\n       and cannot at all be relied upon.\n<\/p><\/blockquote>\n
       Considering the facts and circumstances of this case we
\n       are of the considered opinion that ratio of the aforesaid
\n       decisions of this Court as also of the Supreme Court are
\n       squarely applicable to the facts and circumstances of
\n       this case as in the present case also the independent
\n       power vested in the Commandant under Section 11(2)
\n       read with Rule 177 was exercised after issuing show
\n       cause notice to the petitioner in terms thereof.
\n       Therefore we hold that no further inquiry was required
\n       to be held in view of the fact that the petitioner has
\n       failed to file any reply to the show cause notice and to
\n       deny the allegation in the process.\n<\/p><\/blockquote>\n
       In a recent decision of the Supreme Court in State of
\n       Rajasthan and Another v. Mohammed Ayub Naz<\/a>
\n       reported in 2006 I AD (SC) 308 the Supreme Court after
\n       referring to many other precedences has held that
\n       absenteeism from office for prolong period of time
\n       without prior permission by the Government servant has
\n       become a principal cause of indiscipline which have
\nW.P. (C) No. 4559\/1997                                Page 8 of 9<\/span>
\n        greatly affected various Government services. It is also
\n       held that in order to mitigate the rampant absenteeism
\n       and wilful absence from service without intimation to
\n       the Government the Government has promulgated          a
\n       rule that if the government servant remains willfully
\n       absent for a period exceeding one month and if the
\n       charge of willful absence from duty is proved against
\n       him, he may be removed from service. The Supreme
\n       Court held that the order of removal from service
\n       passed in the said case was the only proper punishment
\n       to be awarded in view of the fact that Government
\n       servant was absent from duty for long period without
\n       intimation to the Government. Ram Pal (supra) is also a
\n       case where action was taken by the respondents under
\n       the provisions of Section 11(2). In the said decision it
\n       was held that once a show cause notice is issued
\n       recording tentative opinion as required, nothing further
\n       was required to be done in the said case as the
\n       employee did not reply to the notice. Therefore it was
\n       held that as there was no denial of the allegation nor
\n       was there any request for holding an inquiry, therefore
\n       the action taken is justified.”\n<\/p><\/blockquote>\n
19.    We dismiss the writ petition but refrain from imposing costs.\n<\/p>\n
                                       (PRADEEP NANDRAJOG)
\n                                              JUDGE<\/p>\n
                                            (SUNIL GAUR)
\n                                               JUDGE<\/p>\n
August 17, 2011
\nrs<\/p>\n
W.P. (C) No. 4559\/1997                                Page 9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Ex.Ct.Satyender Kumar vs Uoi & Ors. on 17 August, 2011 Author: Pradeep Nandrajog * 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-158309","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nEx.Ct.Satyender Kumar vs Uoi & Ors. on 17 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ex-ct-satyender-kumar-vs-uoi-ors-on-17-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ex.Ct.Satyender Kumar vs Uoi & Ors. on 17 August, 2011 - 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