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2022 Supreme(Gau) 515
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, J.
Md. Jalal Uddin Barbhuiya S/o Mohabat Ali Barbhuiya – Petitioner
Versus
The State of Assam and Others – Respondents
W.P. (C) No. 5700 of 2012
Decided On : 26-07-2022
Advocate Appeared:
For the Petitioner: Ms. R. Rangmai.
For the Respondent: Mr. S.A. Verma.
Point of Law : Mere stand by disciplinary authority as well as appellate authority that such certificates are false and fabricated documents without any enquiry or basis, can also be not accepted in manner it is provided in orders of aforesaid two authorities.
Headnote:
Constitution of India, 1950 – Article 226 - Police Act, 1861 - Section 7 - Power of High Courts to issue certain writs – Grant of Leave - Unauthorized absence - Petitioner claimed that he was advised rest for 15 (fifteen) days and accordingly, availed another 15 (fifteen) days commutated leave on medical ground - In meantime, Petitioner was diagnosed to be suffering from Bronchitis and Hepatitis and accordingly, prayed for extension of leave for another 30 (thirty) days accompanied by medical certificate - If disciplinary authority and appellate authority had any doubt on authenticity of medical certificates and documents, same could have been verified from records. (Para 10)
Findings of Court :
Court take note that medical certificates and documents produced by petitioner which are available as Annexures-1, 2 and 3 of writ petition are documents issued by Government Hospital - It being so, a mere stand by disciplinary authority as well as appellate authority that such certificates are false and fabricated documents without any enquiry or basis, can also be not accepted in manner it is provided in orders of aforesaid two authorities. If medical certificates are documents that are issued from a Government Hospital, surely, such documents would be on basis of records maintained in such Government Hospital.
Result : Writ petition allowed.
JUDGMENT :
ACHINTYA MALLA BUJOR BARUA, J.
1. Heard Mr. R. Dhar, learned counsel for the petitioner. Also heard Mr. J.K. Goswami, learned Additional Senior Government Advocate for the respondents no. 1, 2, 3 and 5 being the authorities under the Home and Police Department of the Government of Assam and Mr. A. Chaliha, learned counsel for the respondent no. 4 being the authorities under the Health Department of the Government of Assam.
2. That in the year 2006, the petitioner was a constable in the 6th Assam Police Battalion attached to the No. 1 Platoon and while serving so, he developed certain ailments in the last part of December, 2006. On 19.12.2006, he was sent for Intensive Refresher Course Training at BN Head Quarter, Kathal, Silchar. As he became unwell during the course of the training, he reported to the concerned Unit Hospital at Kathal, Silchar and availed 3 (three) days hospital leave from 19.12.2006 to 21.12.2006. Thereafter, the petitioner claimed that he was advised rest for 15 (fifteen) days and accordingly, availed another 15 (fifteen) days commutated leave on medical ground from 22.12.2006 to 05.01.2007. In the meantime, the petitioner was diagnosed to be suffering from Bronchitis and Hepatitis on 10.01.2007 and accordingly, prayed for extension of leave for another 30 (thirty) days accompanied by the medical certificate dated 09.01.2007. Thereupon, the petitioner was diagnosed to be suffering from Tuberculosis (in short, TB) and accordingly, on 05.02.2007, he sought for an extension of TB special leave for two months accompanied by the required medical certificates. On 06.04.2007, the petitioner made another prayer for extension of TB special leave by another two months. All such representations for leave were received by the concerned Commandant of the Battalion and therefore, he was of a bona-fide belief that the leave that were requested were granted.
3. When the petitioner was almost cured, he was required to appear before the Standing Medical Board of Silchar Medical College and Hospital as per communication dated 13.04.2007 of the Chairman of the Standing Medical Board. Accordingly, the Commandant of the Battalion by his letter of 26.04.2007 required the petitioner to appear before the Medical Board on 07.05.2007 which accordingly, the petitioner complied with, although the resultant opinion of the medical examination was not revealed to the petitioner.
4. In the aforesaid circumstance, the Departmental Proceeding No. 2 of 2007 under Section 7 of the Police Act, 1861 was initiated against the petitioner as per the show-cause notice dated 21.06.2017 to which the petitioner had given his reply dated 11.12.2007. In the departmental proceeding, an order dated 04.11.2008 was passed by the Commandant of the Battalion imposing the punishment of stoppage of annual service increments for 2 (two) years without cumulative effect and the period from 06.01.2007 to 08.06.2007 was held to be unauthorized absence and accordingly, the said period was treated to be leave without pay. Consequent thereof, the respondent authorities also deducted Rs.2000/- (Rupees Two Thousand) per month from the salary of the petitioner towards the recovery of the salary paid to him for the aforesaid period.
5. Being aggrieved, the petitioner preferred an appeal before the Deputy Inspector General of Police (SR), Silchar as per his appeal memo dated 03.02.2009. The appeal was given its final consideration by the order dated 23.02.2010 of the Deputy Inspector General of Police (SR), Silchar, Assam. Being aggrieved, the present writ petition is instituted.
6. In the writ petition, the petitioner relies upon the statement of Dr. Ashim Das, Sub-Divisional Medical and Health Officer, Department Tuberculosis Centre, Cachar, Silchar which is annexed as Annexure-8, Page-28 to the writ petition. In the final order in the departmental proceeding dated 04.11.2008, it is taken note that the disciplinary authority had taken a view that the medical certificat
