DOMNIC KINDO Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition is filed under Article 226 of the Constitution of India for quashing/set aside the orders dtd. 2/3/2010, 14/9/2012, 2/1/2015, 20/4/2015 and 17/11/2015 passed by the Respondent Authorities and for direction to the Respondent Authorities to grant pensionary benefits such as pension, leave encashment, group insurance, gratuity etc. in accordance with the law.

(2.) Brief facts of the case are that the petitioner was appointed as Head Constable under the Indian Tibet Boarder Police Force in the year 1988 and since then the petitioner was discharging his duties. In the year 2009 the petitioner was mentally unfit, therefore, on 17/8/2009, the petitioner after taking leave from his higher authorities till 16/9/2009, came to his home at Kunkuri and from 17/8/2009 to 2/3/2010, he was taken local herbal treatment at Kunkuri, but as on 16/9/2009, the petitioner could not cure from illness, therefore orally informed to the authorities regarding his mental illness as well as inability in attending the duty and also requested for further leave. However, without affording any opportunity for a hearing and without seeking any explanation from the petitioner, vide order dtd. 2/3/2010 (Annexure-P/1) respondent No. 5 has dismissed the petitioner from service. Being aggrieved by the order dtd. 2/3/2010, the petitioner preferred an appeal/representation, which was rejected vide order dtd. 14/9/2012 (Annexure-P/2) against which, the petitioner preferred an appeal before respondent No. 4, which was also dismissed vide order dtd. 2/1/2015 (Annexure-P/3) on the ground of delay. Thereafter, the petitioner preferred a mercy petition before respondent No. 3 whereby also requested for payment of pensionary benefits, but the same was also rejected vide order dtd. 20/4/2015 (Annexure-P/4). After that, the petitioner preferred a representation/revision before respondent No. 2 and requested for payment of pensionary benefit which was also rejected vide order dtd. 17/11/2015 (Annexure-P/5) by respondent No. 2. Hence, the present petition has been filed by the petitioner.

(3.) Learned counsel for the petitioner submits that the impugned orders are bad in law being arbitrary, illegal, unwarranted and unauthorized therefore hit by the postulates of Articles 14, 16 and 21 of the Constitution of India. He further submits that the petitioner has been ex-parte dismissed from service, which is not permissible in law and contrary to the provisions of Article 311 of the Constitution of India. The impugned punishment of ex-parte dismissal of the petitioner from service is disproportionate and exorbitant, which deserves to be quashed by this Court. He next submits that the petitioner remained absent from his duties due to his ill health, after obtaining leave of one month, but the petitioner could not cure within the leave period, therefore he could not be reported on his duties. The petitioner requested the authorities to alter the punishment from dismissal to compulsory retirement, but the same was not considered. He lastly submits that the petitioner has served 22 years without any blame, complaint or stigma, therefore instead of dismissing the petitioner, the respondent authorities ought to have retired the petitioner. There are provisions contained in the Pension Rules to provide pensionary benefits to the employee, who has completed 20 years of service and the petitioner has already served more than 22 years, therefore he has entitled to pensionary benefits. He has placed reliance on the decision of Hon'ble the Supreme Court in the matters of Iqbal Nath Sharma (Dead) by Legal Representatives v. Union of India and Another (2016) 14 SCC 243 and Manoj Kumar v. State of Uttar Pradesh and Others (2018) 13 SCC 161.