S.PRABHAKAR REDDY v. INSPECTOR GENERAL OF POLICE

Heard Sri.G.Ramachandra Rao, learned counsel for the writ petitioner and Ms.Vani Reddy, learned Standing Counsel for the respondents-Force. Learned counsel for the petitioner would submit that the petitioner himself has voluntarily reported to duty on 01.09.1996 along with the medical certificates issued by the competent physician who treated him and without in any manner verifying the factual situation, the 3rd respondent has passed the impugned order. It is further urged that the petitioner has produced medical certificates and prescription slips to establish the fact that because of his sickness he could not report to duty. If the respondents have the slightest of doubt with regard to the authenticity and genuinity of the medical certificates produced by the petitioner he ought to have called in the Doctor who gave the medical certificates and examined him and without doing so the 3rd respondent has passed the impugned order disbelieving the medical certificates issued by the physician. It is further pointed out that instead of imposing a minor punishment as required by Section 11 of the Central Reserve Police Force Act, 1949 (Central Act) a major punishment has been imposed which is shockingly disproportionate to the established misconduct. The petitioner was prevented from reporting to duty all due to his sickness and not for any other reason and hence the punishment imposed is too grave. Learned counsel for the petitioner has laid great emphasis upon Section 10(m) of Central Reserve Police Force Act, 1949 (Central Act) to drive home is contention that unauthorized absence from duty is recorded as a less heinous offence which does not warrant imposition of a very heavy penalty. Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Supreme Court in UNION OF INDIA & ORS. v. GIRIRAJ SHARMA [1] and a Division Bench judgment of this Court in SYED ABDUL KAREEM v. THE COMMANDANT OF 8TH BATTALION AND OTHERS [2] . It is not in dispute or doubt that the petitioner was granted earned leave for a period of 50 days commencing from 22.11.1995 to 10.01.1996 and he was required to report to duty after expiry of this earned leave, but, however, he failed to do so. He ultimately reported to duty on 01.09.1996 i.e. more than seven and half months later. The claim of the petitioner is that he has taken ill at Mahabubnagar and continued to receive the treatment from a local physician attached to the Government District Headquarters Hospital, Mahabubnagar. He has produced the prescription slips issued by the physician who is said to have treated him. However, those two medical certificates have not been believed by the disciplinary authority. In paragraph No.5 of the order the Commandant has clearly set out the reasons as to why the medical certificates produced by the petitioner did not inspire him to accept them. Firstly, both the medical certificates did not bear any date. Further, one of the certificates straightaway recommended rest for six months commencing from 05-01-1996 upto 30-01-1996. The petitioner was diagnosed to be suffering with viral hepatitis. No tests appeared to have been conducted and nowhere the results of the tests are being noted. Further the prescription slips clearly do not show that the writ petitioner has received treatment at the private clinic or a physician attached to the Government District Headquarters Hospital, Mahabubnagar. It, therefore, does not amount to the petitioner receiving any treatment at any Government Hospital. That is the reason why the medical certificates never mentioned of any out-patient number or inpatient number relatable to the petitioner during the alleged period of his illness. The 3rd respondent-Commandant has also noticed that apart from prescribing LIV-52 and B-Complex tablets the petitioner has also been advised to take antibiotics. The 3rd respondent-Commandant has rightly pointed out that antibiotics could not have been prescribed to use for such a prolonged period by any physician without conducting any clinical tests. Therefore, the material produced by the writ petitioner did not inspire any confidence in the mind of the Commandant to believe that there was a justifiable reason for the writ petitioner to overstay the sanctioned leave period of 50 days. I, therefore, do not find that the 3rd respondent has committed any grave irregularity in not placing heavy reliance on the material produced by the petitioner in defence of the charge. The reasoning assigned by the 3rd respondent to discard the material produced in defence by the petitioner is fair and reasonable and it cannot be termed or called as arbitrary or whimsical. Learned counsel for the petitioner has placed reliance upon the judgment rendered upon by the Supreme Court in Giriraj Sharma’s case (1st supra). That was a case where the respondent overstayed the sanctioned leave period of 10 days. In that case the employee has sent a telegram requesting for extension of leave by 12 days, which request was rejected. For this misconduct of overstayal beyond the leave by 12 days, his services came to be terminated. The incumbent that case has explained circumstances in which it was inevitable for him to continue on leave due to unexpected circumstances. Therefore, while admitting that he has overstayed he had offered that he had admitted overstayal of leave sanctioned. In that fact situation, the Supreme Court had noted that it was not the intention of the employee in that case to willfully flout the order and the circumstances forced him to do so. Therefore, in my opinion, Giriraj Sharma’s case (1st supra) stands on its peculiar facts. The Division Bench of the Andhra Pradesh High Court in Syed Abdul Kareem’s case (2nd supra) is also a case of overstayal beyond the leave period and was found that the employee was suffering from chronic illness due to which circumstances he had overstayed the leave by about 125 days. In the fact situation prevailing in that case the Division Bench has held that the punishment is found to be disproportionate. This leaves us in the last contention canvassed by the learned counsel for the petitioner that in lieu of the statutory position adverted to supra only a minor punishment is liable to be imposed but not a major punishment. It will be appropriate to notice that exactly the same question has engaged the attention of the Supreme Court in UNION OF INDIA v. GHULAM MOHD. BHAT [3] wherein after considering Sections 10 and 11 of the Central Reserve Police Force Act, 1949 (Central Act), the Supreme Court has rejected a similar contention canvassed before them in the following words: “ 5. A bare perusal of Section 11 shows that it deals with minor punishment as compared to the major punishments prescribed in the preceding section. It lays down that the Commandant or any other authority or officer, as may be prescribed, may, subject to any rules made under the Act, award any one or more of the punishments to any member of the Force who is found guilty of disobedience, neglect of duty or remissness in the discharge of his duty or of other misconduct in his capacity as a member of the Force. According to the High Court the only punishments which can be awarded under this section are reduction in rank, fine confinement to quarters and removal from any office of distinction or special emolument in the Force. In our opinion, the interpretation is not correct, because the section says that these punishments may be awarded in lieu of, or in addition to, suspension or dismissal.

6. The use of the words “in lieu of, or in addition to, suspension or dismissal”, appearing in sub-section (1) of Section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of the Force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clauses (a) to (e) may also be awarded.

7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and clause (m) thereof shows that absence of a member of the Force without leave or without sufficient cause or overstay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only in a those minor punishments which may be awarded departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10.” It will also be appropriate to notice in paragraph No.9 of the same judgment the principle enunciated in STATE OF U.P v ASHOK KUMAR SINGH [4] , wherein it was held that overstayal by persons belonging to defence force needs to be dealt with sternly. The Supreme Court went on to point out that it is for the employee concerned to show how that penalty was disproportionate to the proved charge. In the instant case the period of overstayal was fairly very long. The material produced by the petitioner in support of his defence before the Enquiry Officer clearly discloses that the petitioner had consulted Dr.G.Chandrudu premises No.1-10-149/A/B, Hospital Road, Mahabubnagar, which is a private clinic of the Doctor concerned. It was purely incidental that he was also the Civil Surgeon attached to the Government Headquarters Hospital, Mahabubnagar. The bunch of prescription slips produced by the petitioner established fact. Unfortunately, for the petitioner he cannot be said to have received any treatment at the Government Headquarters Hospital, Mahabubnagar. Even otherwise, the viral hepatitis that he was said to be suffering is not one such which could have reasonably prevented the petitioner from securing treatment from any Government Hospital, for one to be convinced that he is truly sick. More importantly the fitness certificate which is undated declares the petitioner fit for duty on 31.08.1996. As was already noticed the petitioner produced the same on 01.09.1996 when he reported to duty at Assam. The journey time between Mahabubnagar and Assam itself would have consumed two days and very rightly the 3rd respondent has not preferred to attach any importance to this undated fitness certificate which declared the petitioner fit for duty from 31.08.1996. Incidentally, in paragraph No.11 of the counter affidavit it was pointed out that the petitioner was punished earlier for overstayal of leave from 23-04- 1994 to 08-08-1994. This period of overstayal of leave was regularized by granting him 108 days of extraordinary leave and he was also awarded confinement for 7 days to quarter guard w.e.f. 25-10-1994 to 31-10-1994. The present overstayal has followed quite immediately thereafter. For these reasons, I do not find any merit in this writ petition and it is accordingly dismissed, but, however, without costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 24th July 2012 THE HON’BLE SRI JUSTICE NOOTY RAMAMOHAN RAO WRIT PETITION NO.10418 OF 2000 24th JULY, 2012. [1] [2] [3] [4] 1994 I LLJ 604 (SC) W.P.NO.22961 OF 2003, DT.11-06-2010 (2005) 13 SCC 228 (1996) 1 SCC 302