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2007(1) JLJ 333
A.K. Shrivastava, J.
S.P. Tiwari v. Union of India and others
Writ Petition(S) No.25 of 2005 (Jabalpur); Decided on 28.10.2005.
The contention of learned counsel for the petitioner is that petitioner applied for leave and without obtaining its sanction he proceeded on leave and did not join duty for 33 days as a result of which the petitioner was subjected to a departmental enquiry. [Para 2 He was dismissed from his services. [Para 3
Held: There is nothing on the record in order to show that any efforts were made by the respondents in order to hold that the house of the petitioner was not collapsed or his mother was not ill. In absence of any document to the contrary, disbelieving these two documents on the above said grounds, appears to be arbitrary and the arbitrary action cannot be upheld and affirmed before the law Court. In the case of Shri Bhagwan Lal Arya [(2004)4 SCC 560], the apex Court held that if a delinquent remained absent for more than two months, and the punishment order dismissing him from service was found to be shockingly disproportionate by the Supreme Court. If the ratio decidendi of the decision of Shri Bhagwan Lal (supra), is tested on the touchstone of the present facual scenario, I am of the view that the case in hand is on better footing for the simple reason that in the present case the delinquent remained absent for 33 days while in the case of Shri Bhagwan Lal Arya (supra), the delinquent remained absent for more than two months. [Para12
The petitioner is hereby punished by treating the period he remained absent from duty as well as the period till he submits his joining report in pursuant to the order which I am passing today that period shall not be counted as a period spent on duty. (2004)4 SCC 560 followed. [Para 15
(2) Documents -- certificate of Sarpanch -- does not require to be attested by any Government Officer -- likewise, medical certificate of private clinic -- not required to be attested by District Chief Medical Officer. [Para 12
(3) Practice -- medical treatment -- it is choice of patient to get treatment either from private clinic or from Government hospital. [Para 12
(4) Constitution of India -- Arts. 226 and 227 -- writ petition against Chief of Army Staff -- can be filed anywhere in country -- no question of territorial jurisdiction arises. (2001)9 SCC 525 followed. 2002(2) JLJ 86 relied on. [Paras 6 & 7
¼1½ lhek lqj{kk cy vf/kfu;e] 1968& &/kkjk 19¼d½ rFkk 40& &;kph ?kj <g tkus vkSj viuh ekrk dk mipkj djkus ds dkj.k 33 fnu vuqifLFkr jgk& &lsokPqfr pfdr djus ;ksX; vuuqikfrd naM gS& &vf/kfu.khZr naM ;g fd bl vkns‘k ds vuqlj.k esa inxzg.k fjiksVZ is‘k fd, tkus rd vuqifLFkfr dh vof/k M;wVh ij O;rhr vof/k ugha ekuh tk,xhA
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mls lsok ls gVk fn;k x;kA ¼iSjk 3½
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¼2½ nLrkost& &ljiap dk çek.ki=& &ljdkjh vf/kdkjh }kjk vuq¬çekf.kr fd;k tkuk visf{kr ugha& &mlh çdkj] çkbosV Dyhfud dk fpfdRlk çek.ki=& &ftyk eq[; fpfdRlk vf/kdkjh }kjk vuqçekf.kr fd;k tkuk visf{kr ughaA ¼iSjk 12½
¼3½ çFkk& &fpfdRlh mipkj& &çkbosV Dyhfud ls mipkj djk, ;k ljdkjh vLirky ls] ;g jksxh dh ilan gSA ¼iSjk 12½
¼4½ Hkkjr dk lafo/kku& &vuq- 226 rFkk 227& &Fkylsuk/;{k ds fo#) fjV ;kfpdk & ns‘k esa dgha Hkh Qkby dh tk ldrh gS& &{ks=h; vf/kdkfjrk dk ç‘u mn~Hkwr ugha gksrkA ¼2001½9 ,l lh lh 525 vuqlfjrA 2002¼2½ ts ,y ts 86 voyafcrA ¼iSjk 6 ,oa 7½
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner is seeking following reliefs:
(i) That, this Hon'ble Court be pleased to issue a writ, order or direction in the nature certiorari thereby quashing the sentence passed by the respondent No.3 on 25th September, 1999.
(ii) That, this Hon'ble Court be pleased to issue a writ, order or direction in the nature of mandamus thereby directing the respondents immediately reinstate the petitioner in service with all consequential benefits including pay and allowances.
2. The contention of learned counsel for the petitioner is that petitioner applied for leave and without obtaining its sanction he proceeded on leave and did not join duty for 33 days as a result of which the petitioner was subjected to a departmental enquiry. The following charges were framed against the petitioner:
Charge No.1 : Absenting himself without leave -- In that he, on 14 August 1999 at 1400 hrs. while dispatched from FN HQ to report to his Coy for duty at BQF Basti Ram Lal absented himself without leave till 16.9.1999 (FN).
Charge No.II : An act prejudicial to good order and discipline of the Force -- In that he, in the month of Aug. 1999 , while absenting without leave, approached DO BSF directly through a letter for his posting out of 142 Bn BSF, thus violating the channel of command.
3. After holding a departmental enquiry the disciplinary authority found petitioner to be guilty of the charges since both the charges were found to be proved and eventually the impugned order Annexure P-3 dated 25th September, 1999 was passed by respondent No.3 and he was dismissed from his services under sections 19(a) and 40 of the Border Security Force Act, 1968.
4. Feeling aggrieved by the order of dismissal Annexure P-3. the petitioner preferred a departmental appeal which was dismissed on 25th September, 2003 by respondent No.2. Hence this petition.
5. The contention of learned counsel for the petitioner is that he is the resident of district Satna and since his house was collapsed on account of heavy rains and his mother was seriously ill, therefore he submitted an application for obtaining the leave and proceeded to his home place. The petitioner remained absent from his duty with effect from 14.8.1999 to 15.9.1999. According to the petitioner he submitted his joining on 16.9.1999. The petitioner was posted at Khemkaran in Punjab. Since the departmental appeal of the petitioner was also dismissed hence he has filed this present petition.
6. A preliminary objection in regard to the territorial jurisdiction has been raised by Shri Nekhra, learned counsel for the respondents and has submitted that since the order Annexure P-3 was issued and served on petitioner at Khemkaran (Punjab) therefore, this Court is not having any territorial jurisdiction. In support of his contention learned counsel for the respondents has placed reliance on a Single Bench decision of Allahabad High Court in Civil Miscellaneous Writ Petition No.35438 of 2002 (Indra Gyan Shukla v. Union of India and others), decided on 24.9.2003. On the other hand Shri Pandey, learned counsel appearing for the petitioner by placing reliance on the decision of Supreme Court Dinesh Chandra Gahtori v. Chief of Army Staff and another [(2001)9 SCC 525], which was relied by the Division Bench of this Court in the case of Ram Narain Singh v. Chief of the Army Staff and others [2002(2) JLJ 86=2002(2), MPLJ 623], has submitted that the Chief of Army Staff may be sued anywhere in the country and therefore this Court is having territorial jurisdiction.
7. After hearing learned counsel for the parties on the preliminary I objection, I am of the view that the preliminary objection in regard to territorial jurisdiction is devoid of any substance. In the case of Dinesh Chandra Gahtori (supra), employee of the army staff was subjected to Court martial and was awarded the sentence of dismissal from service. The High Court dismissed the writ petit
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