STATE OF ODISHA & ORS. versus GANESH CHANDRA SAHOO on 10 January 2020

1. The State of Odisha, the Director General & Inspector Generalof Police and others in the police department have filed this appeal tochallenge the judgment and order dated 2.5.2018 in Writ Petition(C)No.7053/2011. In the impugned judgment, the High Court of Orissa A

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Ahas substituted the punishment of discharge for the respondent, tocompulsory retirement and to this extent modified the order dated2.12.2010 whereunder, the Orissa Administrative Tribunal[1] had dismissedthe O.A.No.1459(C)/2003 filed by the discharged Orderly.

2. Before disciplinary action was taken, the respondent was servingBas a Follower Orderly, in the OSAP 4[th] Battalion, Rourkela. He securedleave from 25.5.1991 to 4.6.1991 to visit his ailing mother and proceededto his native village. While on leave, he suffered from cerebral malariaand was admitted in the C.T. Hospital, Cuttack on 31.5.1991 and thereafterhe was medically advised to take rest for 2 months. When the respondentapplied for leave extension, on 12.6.1991 (Annexure P1), theCCommandant directed the respondent to appear before the CDMO,Cuttack for medical examination/treatment and the likely period neededfor treatment, was to be intimated to the Commandant. When therespondent failed to appear for the medical test, a second communicationwas issued on 22.10.1991 in the same line. But since the respondent did Dnot heed those communications and his whereabouts were not intimatedeven after months of leave expiry, the respondent was sternly directedon 13.3.1992 to have his medical examination done by the CDMO,Cuttack within 7 days of receipt of the letter, to establish the genuinenessof his sickness plea or else, he will face departmental action forunauthorized leave overstay.E

3. Following the failure of the respondent to have himself medicallyexamined and resume his duties, the departmental proceeding was initiatedagainst him and the charge memo (26.10.1992) and other relevantdocuments were duly served upon the respondent, at his native place.The respondent, however, did not submit any explanation and thereafterFhe refused to accept the notice and the depositions that were sent tohim. Because of the non-participation of the delinquent, the proceedinghad to be conducted ex parte and the inquiry officer found the respondentguilty of the charge. Accepting the finding of the inquiry officer, theCommandant issued the 2[nd] show cause notice proposing the penalty ofGdismissal and eventually, the respondent was discharged from servicevide the Battalion order No.4189 dated 30.12.1993 (Annexure P6). Thedischarge order indicates that the delinquent did not respond to the secondshow cause notice and in fact the postal department’s endorsement onthe body of the envelope indicated that the respondent refused to acceptthe notice sent by the disciplinary authority.H1 Tribunal

4. Four years after the discharge order (30.12.1993), the respondentaddressed an appeal to the appellant no.2 herein and although the appealwas time barred, the Authority considered the same on merit but rejectedthe appeal on the ground that disciplinary action was in pursuant to a fairinquiry without any procedural irregularity and the penalty awarded isjustified. Following the rejection of his appeal, the respondent addresseda grievance petition to the Chief Minister of Orissa which however wasrejected by the Government letter dated 19.9.2000.

5. A decade after the discharge order and three years followingthe rejection of the grievance petition, the respondent approached theOrissa Administrative Tribunal with O.A. No.1459 (C)/2003 to challengethe disciplinary action. The respondent contended before the Tribunalthat he was suffering from mental ailment and therefore he was not in aposition to respond to the departmental notices sent to him. In supportof his plea of mental incapacity, the respondent furnished the medicalcertificate dated 21.1.1998 of Dr. G.C. Kar, Professor & Head of theDepartment, Psychiatry, SCB Medical College, Cuttack, which is in thefollowing terms:

“This is to certify that Shri Ganesh Chandra Sahu, 40 years,S/o Shri Sanatan Sahu, Village Gopalpur, P.O. Raghunathpur, P.S./District Jagatsinghpur reported before me with history of mentalillness since 3.6.1991 being referred by his area M.L.A.

He has been treated for a long period because of repeatcyclic attack of Maniac Depression Psychosis following cerebralmalaria from 03.06.91 till date. During the period under treatmenthe was incapable of taking responsibility and was advised rest.

Reviewing all my past and present examination finding, Iam of the opinion that he is fit to take up duty from 22.01.98.

Leave for the period of his absence from Government dutyfrom 03.06.91 till 21.01.98 may please be recommended to himon medical ground.”

6. The Tribunal noted the relevant facts and while adverting tothe above medical certificate the Tribunal noticed that the certifyingDoctor has not specifically mentioned that for the period covered by hiscertificate (3.6.1991 - 21.1.1998), the respondent was under his treatment.It was also found to be significant that respondent has not pleaded thathe was under treatment of psychiatrist at any time prior to issuance of A

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Athe medical certificate by the psychiatry specialist. Since the Doctor’sopinion on the patient’s mental health covered about 7 years period, theveracity of the medical certificate was doubted by the Tribunal.

7. In their order, the Tribunal adverted to the manner of conductingthe disciplinary proceeding and also the letters and notices addressed toBthe delinquent-respondent and the refusal by the respondent to receivethe communication sent to him by the disciplinary authority. It was thennoted that the respondent had unsuccessfully approached the appellateauthority about four years after the discharge order.

8. Considering the aforenoted circumstances, the Tribunal heldCthat adequate reasonable opportunity was afforded to the delinquentand there were no procedural flaws in the departmental action. TheTribunal also felt that the case of the respondent was not an exceptionalone covered under Rule 72 of the Orissa Service Code[2] With suchreasoning the respondent’s OA was dismissed by the Tribunal on2.12.2010 (Annexure P13).D

9. Aggrieved by the rejection of his OA by the Tribunal, therespondent approached the High Court of Orissa with the W.P(C) No.7053/2011 where again, he projected that when he proceeded on leaveto his native village, he suffered from cerebral malaria and was admittedin the C.T. Hospital, Cuttack on 31.5.1991. Following the attack ofEcerebral malaria, the respondent developed psychiatric problem and withthese explanations he tried to justify his lack of response and non-participation in the disciplinary proceeding. According to the respondent,soon after he recovered from his ailments, armed with the medicalcertificate dated 21.1.1998 he reported to resume his duty but he wasFnot allowed to re-join the Battalion.

10. The appellant-State on the other hand projected before theHigh Court that on receiving the request for leave extension on medicalground, the Commandant of the 4[th] Battalion had directed the respondentvide consecutive memos (dated 12.6.1991 and 22.10.1991), to appearGbefore the CDMO, Cuttack but he failed to present himself for medicalassessment of his health condition. In fact specific communication wassent to the respondent on 13.3.1992 that unless he appears before theCDMO, departmental proceeding would be initiated against him. Therespondent however defied the Commandant’s direction for his medical examination and resumption of duty and accordingly he was subjectedto departmental proceeding where he was found guilty of the charge bythe inquiry officer. The Commandant agreed with the finding recordedagainst the delinquent and issued him the second show cause noticeproposing the dismissal penalty but faced with no response, the respondentwas discharged from service vide order dated 30.12.1993.

11. The High Court however noted that the respondent has nopast history of unauthorized absence. Then the medical certificate issuedby the Professor & HoD of Psychiatric Department, SCB, MedicalCollege and Hospital, Cuttack was adverted to and the Division Benchfelt that such medical certificate issued by an expert cannot be brushedaside lightly. The Court also made the off the cuff observation to theeffect that patient suffering from cerebral malaria develop mental illness.Proceeding with such perception, the punishment was found to beexcessive and accordingly the High Court substituted the penalty ofdischarge with compulsory retirement.

12. In support of its decision to substitute the penalty, the HighCourt relied on the ratio in Rajinder Kumar v. State of Haryana &another[3]wherein Justice Kurian Joseph speaking for a two judge Benchof this Court opined that since different punishments are prescribed underthe Rules, the disciplinary authority should exercise its discretion to decideon the appropriate punishment, taking note of the gravity of themisconduct and its impact on the service.

13. Representing the appellants, the learned Government CounselMs. Anindita Pujari submits that the High Court had erred in applyingthe ratio of a dissimilar case to grant relief to the errant employee. Onthe other hand, Mr. Nikilesh Ramachandran, the learned counsel arguesthat the respondent’s mental condition during 1991 to 1998 must be bornein mind to understand why he failed to participate in the disciplinaryproceeding and/or why, he did not re-join the battalion after expiry ofleave.

14. In order to decide on the applicability of the ratio in RajinderKumar (supra), we must advert to the facts in this case. Here therespondent after availing leave for nine days (from 25.5.1991 to 4.6.1991),did not report back to his Battalion until 1998. But long before that, therespondent having not presented himself before the CDMO, for his 3 AIR 2015 SC 3780

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Amedical examination, was proceeded departmentally and was dischargedfrom service on 30.12.1993. Therefore, unlike in the case of RajinderKumar (supra) where the concerned delinquent was absent only for 37days, the respondent herein did not report back for duties for about sevenyears. Significantly, he thwarted his medical examination by disregardingthe direction of the Commandant to present himself before the CDMO,BCuttack. In the cited case where delinquent was absent for 37 days, thepunishment of discharge was found to be disproportionate and it wasaltered to compulsory retirement. But in the present case, the respondentfailed to report back for duty for about seven years after availing leavefor 9 days. Therefore, the nature and degree of misconduct in the twoCcases are not of the same category and hence the two cases with differentfacts could not have been decided, in our opinion, with the same judicialstandard.

15. It is also significant that the High Court failed to notice thatthe respondent did not present himself for the official verification of hisDmedical status by the CDMO and thereby prevented confirmation of hispleaded medical condition. In this manner, the respondent not only defiedthe Commandant’s direction but remained absent without authorization,for about seven years. Later, he tried to justify his long absence withoutproducing any contemporaneous medical records.

E16. The impugned judgment reflects that the primary basis for theHigh Court to have intervened in favour of the respondent was the medicalcertificate (dated 21.9.1998), issued by Dr. G.C. Kar, who was the thenProfessor & HoD of Psychiatric Department, SCB, Medical Collegeand Hospital, Cuttack. But interestingly, the certifying Doctor does notcategorically mention that the respondent was under his treatment sinceF1991. Most unusually, the certificate reflects that on reference by thelocal MLA, the respondent reported before the specialist Doctor on21.1.1998. Therefore the respondent’s was not a referral case by aDoctor, who might have been treating the respondent during 1991 to1998. If the respondent was a patient under Dr. Kar, there would haveGno need for the MLA’s reference and the Doctor could have issued thecertificate based on his own line of treatment and medication. It is forsuch logical fallacy, the Tribunal doubted the veracity of the medicalcertificate, which reported on the respondent’s purported mentalincapacity, between 1991 and 1998.

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17. In granting relief to the respondent in his writ petition, theHigh Court should have considered that the respondent was absent fromduty for seven long years and he was aware of the discharge orderpassed against him on 30.12.1993. As regards the plea of mental illnesswhich might have incapacitated the respondent from either reportingfor duty or to participate in the disciplinary proceeding, the Court shouldhave borne in mind the failure of the respondent to make himself availablebefore the CDMO to crosscheck his pleaded medical condition Thiswas in defiance of the repeated communications addressed to theabsentee-employee by the Commandant of the Battalion. It is also ofsignificance that neither the Tribunal nor the High Court found anyinfirmity with the disciplinary proceeding which led to the issuance ofthe discharge order against the delinquent on 30.12.1993.

18. In the above circumstances, when factual finding was recordedby the Tribunal on fairness of the disciplinary proceeding with dueopportunity to the delinquent, the substitution of the penalty of discharge,was not warranted. This is more so as the High Court found support fortheir decision from Rajinder Kumar (supra) where the concernedconstable was unauthorizedly absent for 37 days whereas the respondentherein had failed to report back for duty for long 7 years, from 1991 to1998.

19. If the respondent had actually suffered from cerebral malariasince 3.06.1991 and was subjected to frequent cyclic attack of ManiacDepression Psychosis, as claimed, necessary proof of such sufferingfrom the concerned Doctor/Hospital who were providing him thetreatment, ought to have been produced. Moreover, he never allowedfor cross verification of his pleaded medical condition by presentinghimself before the CDMO in 1991 or thereafter. Instead, the respondentonly produced the 21.1.1998 certificate of the HoD, Psychiatry whomay have had no role in the treatment of the respondent. It thereforeappears to be a case of certificate of convenience on the purportedsymptoms and mental ailment of the respondent from 1991 to 1998,without support of any contemporaneous medical records. Most curiously,the Doctor had issued the certificate on the basis of reference made bythe local MLA but not on the basis of referral by Doctor/Hospital whichmight have been involved with the respondent’s treatment during 1991to 1998.

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A20. In the present case, we are inclined to think that the respondentby remaining away from duty since 1991 to 1998 without producingcontemporaneous medical record has not only been irresponsible andindisciplined but tried to get away with it by producing the certificate ofa specialist Doctor who may not have treated the respondent. Significantly,although the respondent produced a certificate of a psychiatric specialist,Bhe never claimed that he received treatment from any psychiatric Doctor.In such backdrop, the High Court should not have invoked the self servingmedical certificate. The Court wrongfully relied on Rajinder Kumar(supra) where this Court’s intervention was in entirely differentcircumstances. Besides the doctrine of proportionality is not attracted inCthe present facts.

21. There is another aspect which will require our consideration.Before the Tribunal, the counsel for the respondent submitted that for anemployee suffering from mental ailment, his situation should be treatedas an exceptional case under Rule 72 of the Orissa Code which dealsDwith leave for Government servant remaining absent for over five years.Under Rule 72, no leave of any kind is admissible for period exceedingfive years unless the Government determines the case to be one ofexceptional circumstances. The Rule 72 is quoted below for readyreference:

E“72. (1) No Government servant shall be granted leave of anykind for a continuous period exceeding five years.

(2) Where a Government servant does not resume duty afterremaining on leave for a continuous period of five years, or wherea Government servant after the expiry of his leave remains absentFfrom duty otherwise than on foreign service or on account ofsuspension, for any period which together with the period of theleave granted to him exceeds five years, he shall, unlessGovernment in view of the exceptional circumstances of the caseotherwise determine, be removed from service after followingthe procedure laid down in the Orissa Civil ServicesG(Classifications, Control and Appeal) Rules, 1962.”

On careful reading of the above provision we are quite sure thatthe situation here is not one of exceptional circumstances. In fact theveracity of the self-serving medical certificate to justify the seven yearsabsence, was correctly doubted by the Tribunal.H

22. In the above circumstances, the High Court should not havegranted relief to the respondent solely on the basis of the medicalcertificate of the specialist Doctor who may not have personally treatedthe patient. In the absence of relevant and contemporaneous medicalrecords, the High Court should not have interfered with the disciplinaryaction and ordered for a lesser penalty. The gravity of the misconduct ofthe respondent was overlooked and unmerited intervention was madewith the Tribunal’s rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondent.

23. In view of the foregoing, we set aside the impugned judgmentand order of the High Court and allow the appeal. There shall be noorder as to cost.

Kalpana K. Tripathy

Appeal allowed.

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