High Court
Case Details
WA 193/2013 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE A.K. GOSWAMI (A.K.Goel, C.J.) This appeal has been preferred against order of learned Single Judge dec lining to interfere with the order of dismissal of the appellant from service fo r his unauthorized absence from duty for 13 months and 2 days.
Legal Reasoning
The appellant was employed as a Constable in the Assam Riffles governed by the Army Act, 1950. He was granted leave for the period 11.5.2002 to 9.7.2002 on account of death of his brother. However, he rejoined only on 11.8.2003 afte r 13 months and 2 days and he was given charge-sheet dated 14.9.2003 for the sai d misconduct. His explanation was that he had fallen sick and on that account he remained absent. Court Martial proceedings were initiated as per provisions of the Army Act and on charge being proved, the appellant was dismissed from servic e. According to learned counsel for the Union of India, Section 71 is to be read with Section 39 and 72 of the Act, as laid down in Union of India Vs. R.K. Shar ma, (2001) 9 SCC 592 and Union of India Vs. Harjeet Singh Sandhu, (2001) 5 SCC 5 93.
Decision
The grievance of the appellant in the writ petition was that there was s ufficient explanation for his absence as he was ill. This stand was contested by the respondents by filing affidavit to the effect that the appellant never inti mated his Unit about his illness and the stand that he gave intimation over tele phone was false. He also did not report about his illness to any Military or Gov ernment Hospital. Medical certificates produced by him were not as per procedure applicable. The appellant also pleaded guilty before the Summary Court Martial and the stand now taken was an afterthought. Certificate that a private doctor a dvised him 24 weeks rest was unreliable and against the standard literature on t he subject. No report of CT/MRI Scan was produced to substantiate the diagnosis of the illness of slip disc mentioned in the certificate. There was no illegalit y or arbitrariness in conducting of the Summary Court Martial as per the statuto ry procedure. After considering the rival submissions, learned Single Judge upheld the stand of the respondents as follows :- I have duly considered the submissions made by the learned counsel for t (cid:28) he parties and have also perused the entire materials on record. The admitted po sition is that the petitioner overstayed leave for long 13 months and 2 days. Al though in the writ petition, the plea of the petitioner is that he had furnished intimation over telephone, apart from the fact that such plea of the petitioner had been denied by the respondents in their counter affidavit, such telephonic instruction even if any, was also unauthroised. It was incumbent on the part of the petitioner to furnish intimation in writing. He did not do anything of the s ort, but remained away from duty for long 13 months and 2 days. In the enquiry, the petitioner could not justify such absence from duty. As noted above, he also admitted the fact of remaining unauthorisedly absent from duty for 13 months an d 2 days. As has been held by the Apex Court in Channabasappa Basappa Happali Vs . The State of Mysore reported in AIR 1972 SC 32, admission of fact indicated in the charge amounts to admission of the charge itself. The authority on the basi s of the summary court martial proceeding having come to the conclusion that the petitioner as a member of the disciplined force was not fit to be retained in s ervice, this Court exercising its power of judicial review under Article 226 of the Constitution of India cannot substitute the said finding. In Union Union of India Vs. Mithilesh Singh, reported in 2000 (3) GLT 62 which h as been affirmed by the Apex Court in Mithilesh Singh Vs. Union of India reporte d in (2003) 3 SCC 309, it has been held that unauthorized absence from duty by m ember of the disciplined force may entail the penalty of removal from service. A s in the instant case, in the said case also the petitioner was a member of the disciplined force (RPF). He remained absent from duty unauthorisedly and accordi ngly pursuant to a proceeding, he was removed from service. Learned Single Judge inferring with the penalty of removal form service issued direction for imposin g any other lesser penalty. The challenge to the said direction was upheld by th e Division Bench of this Court and affirmed by the Apex Court. As indicated abov e, it was held that unauthorized absence from duty by member of the disciplined force is a serious misconduct and the penalty of removal imposed cannot be fault ed with. The decision, on which, Mr. Rahman, learned counsel for the petitioner has place d reliance i.e. M. Gopalakrishna (supra) is not applicable to the fact situation of this case. In the said case, the incumbent had overstayed leave only by 12 d ays and could explain the circumstances in which it was impossible for him to re join and had to continue on leave as he was forced to do so, on account of unexp ected circumstances. It was in such circumstances, the Apex Court held that the order of dismissal from service was excessive and accordingly interfering with t he same, a minor penalty was awarded. Unlike the said case, in the instant case, the petitioner overstayed the leave by 13 months and 2 days and that too withou t explaining the circumstances and furnishing any intimation to the authority, b ecause of which, he had also to be declared as deserter. Above being the position, I do not find any merit in the writ petition a nd accordingly, it is dismissed. (cid:29) We have heard learned counsel for the parties. Only submission advanced on behalf of the appellant is that the punishme nt awarded is excessive. We are unable to accept this submission. There was no acceptable explana tion for long absence of 13 months 2 days. It has not been explained as to why t he appellant did not visit any Government or Military Hospital. He did not under go any CT Scan/MRI which was normal if the appellant was diagnosed of a disease of slip disc requiring bed rest for four months. There was no explanation as to why the appellant could not inform the authorities throughout the period of his long absence. He did not take the plea of disc-disorder at the earliest opportun ity. Under these circumstances, the view taken by the respondents cannot be held to be arbitrary. Punishment imposed could not be held to be disproportionate to the charge of his unauthorized absence for 13 months and 2 months in a discipli ned force. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. The appeal is dismissed.