Back
SUPREME COURT OF INDIA
D.Y. CHANDRACHUD, HRISHIKESH ROY, JJ.
State of Odisha & Ors. – Appellants
Versus
Ganesh Chandra Sahoo – Respondent
Civil Appeal No. 9514 of 2019 (Arising out of SLP(C) No.1731 of 2019)
Decided on : 10-01-2020
Service Law – Punishment – Unauthorized leave overstay – Discharge order indicates that delinquent did not respond to second show cause notice – High Court substituted penalty of discharge with compulsory retirement observing that respondent has no past history of unauthorized absence and that medical certificate issued by an expert cannot be brushed aside lightly – Respondent did not report back for duties for about seven years – High Court failed to notice that respondent did not present himself for official verification of his medical status by CDMO and thereby prevented confirmation of his pleaded medical condition – In this manner, respondent not only defied Commandant’s direction but remained absent without authorization, for about seven years – Later, he tried to justify his long absence without producing any contemporaneous medical records – Neither Tribunal nor High Court found any infirmity with disciplinary proceeding which led to issuance of discharge order against delinquent – When factual finding was recorded by Tribunal on fairness of disciplinary proceeding with due opportunity to delinquent, substitution of penalty of discharge, was not warranted – Under Rule 72, no leave of any kind is admissible for period exceeding five years unless Government determines the case to be one of exceptional circumstances – High Court should not have granted relief to respondent solely on the basis of medical certificate of specialist Doctor who may not have personally treated patient – In absence of relevant and contemporaneous medical records, High Court should not have interfered with disciplinary action and ordered for a lesser penalty – Impugned judgment and order of High Court set aside. [Rule 72 of Orissa Service Code, 1939] (Paras 3, 11, 14, 15, 17, 18, 20, 21, 22 and 23)
Facts of the case:
State of Odisha, Director General & Inspector General of Police and others in police department have filed this appeal to challenge the judgment and order dated 2.5.2018 in Writ Petition (C)No.7053/2011. In impugned judgment, High Court of Orissa has substituted punishment of discharge for respondent, to compulsory retirement and to this extent modified order dated 2.12.2010 whereunder, Orissa Administrative Tribunal1 had dismissed O.A.No.1459(C)/2003 filed by discharged Orderly.
Findings of Court:
Respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing certificate of a specialist Doctor who may not have treated respondent. Significantly, although respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, High Court should not have invoked the self-serving medical certificate.
Result : Appeal allowed.
JUDGMENT :
Hrishikesh Roy, J.
1. The State of Odisha, the Director General & Inspector General of Police and others in the police department have filed this appeal to challenge the judgment and order dated 2.5.2018 in Writ Petition (C)No.7053/2011. In the impugned judgment, the High Court of Orissa has substituted the punishment of discharge for the respondent, to compulsory retirement and to this extent modified the order dated 2.12.2010 whereunder, the Orissa Administrative Tribunal[Tribunal] had dismissed the O.A.No.1459(C)/2003 filed by the discharged Orderly.
2. Before disciplinary action was taken, the respondent was serving as a Follower Orderly, in the OSAP 4th Battalion, Rourkela. He secured leave from 25.5.1991 to 4.6.1991 to visit his ailing mother and proceeded to his native village. While on leave, he suffered from cerebral malaria and was admitted in the C.T. Hospital, Cuttack on 31.5.1991 and thereafter he was medically advised to take rest for 2 months. When the respondent applied for leave extension, on 12.6.1991 (Annexure P1), the Commandant directed the respondent to appear before the CDMO, Cuttack for medical examination/treatment and the likely period needed for treatment, was to be intimated to the Commandant. When the respondent failed to appear for the medical test, a second communication was issued on 22.10.1991 in the same line. But since the respondent did not heed those communications and his whereabouts were not intimated even after months of leave expiry, the respondent was sternly directed on 13.3.1992 to have his medical examination done by the CDMO, Cuttack within 7 days of receipt of the letter, to establish the genuineness of his sickness plea or else, he will face departmental action for unauthorized leave overstay.
3. Following the failure of the respondent to have himself medically examined and resume his duties, the departmental proceeding was initiated against him and the charge memo (26.10.1992) and other relevant documents were duly served upon the respondent, at his native place. The respondent, however, did not submit any explanation and thereafter he refused to accept the notice and the depositions that were sent to him. Because of the non-participation of the delinquent, the proceeding had to be conducted ex parte and the inquiry officer found the respondent guilty of the charge. Accepting the finding of the inquiry officer, the Commandant issued the 2nd show cause notice proposing the penalty of dismissal and eventually, the respondent was discharged from service vide the Battalion order No.4189 dated 30.12.1993 (Annexure P6). The discharge order indicates that the delinquent did not respond to the second show cause notice and in fact the postal department’s endorsement on the body of the envelope indicated that the respondent refused to accept the notice sent by the disciplinary authority.
4. Four years after the discharge order (30.12.1993), the respondent addressed an appeal to the appellant no.2 herein and although the appeal was time barred, the Authority considered the same on merit but rejected the appeal on the ground that disciplinary action was in pursuant to a fair inquiry without any procedural irregularity and the penalty awarded is justified. Following the rejection of his appeal, the respondent addressed a grievance petition to the Chief Minister of Orissa which however was rejected by the Government letter dated 19.9.2000.
5. A decade after the discharge order and three years following the rejection of the grievance petition, the respondent approached the Orissa Administrative Tribunal with O.A. No.1459 (C)/2003 to challenge the disciplinary action. The respondent contended before the Tribunal that he was suffering from mental ailment and therefore he was not in a position to respond to the departmental notices sent to him. In support of his plea of mental incapacity, the respondent furnished the medical certificate dated 21.1.1998 of Dr. G.C. Kar, Professor & Head of th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
