B.B. SHARMA Vs. UOI

JUDGEMENT

(1.) The petitioner is aggrieved by the penalty of withholding of one increment with cumulative effect imposed upon him for an alleged misconduct. The petitioner was working as Constable in the Central Industrial Security Force ("CISF"). At that time, he was posted in Murar, Gwalior, Madhya Pradesh. The CISF issued an order on 19.6.2002 detailing personnel for QRT course scheduled to be held at the Recruits Training Centre, CISF, Barwaha. A pre -training course was to be undergone by all those presently in Saket. It is stated that the names of the personnel detailed for the course was enhanced in 2002. The petitioner stated that he was suffering from abdominal pain and that he was examined in a Civil Hospital by one Dr. S.R. Sharma. On the basis of the Certificate issued by the said Doctor who recommended seven days bed rest on account of suspected Hepatitis, the petitioner did not join. The CISF suspected that the petitioner was malingering and using the pretext of Hepatitis in order to escape the detailment. It claims to have conducted his examination through a review board which according to the CISF pronounced that the petitioner was not suffering from Hepatitis. Departmental proceedings were initiated against the petitioner which culminated in a finding of guilt by the Inquiry Officer. The petitioner was imposed the penalty of withholding of one increment for a period of one year with cumulative effect which was also to have effect in the future. The petitioner appealed against this order; on 16.12.2004, the appeal was rejected. Apparently, the petitioner had approached this Court earlier in writ proceedings and was asked to exhaust departmental remedies. Therefore, he filed an appeal. It is argued that the findings of the departmental inquiry are perverse. Learned Counsel points out that the finding that the illness was an excuse to avoid the reporting for training was premised upon an assumption that the petitioner was not examined and that the Doctor did not agree that he was ill. Learned Counsel points out that the Physician Dr. S.R. Sharma clearly stated that he had examined the petitioner on 21.6.2002. He had also verified the OPD Ticket in that regard and supported the contention that he was suffering from abdominal pain and loose motion and on examination of the abdomen he expressed doubt as to the possibility of suffering from Hepatitis. The said Doctor advised stool and urine test because of the hot season and also advised bed rest for seven days. The said Doctor refuted the serum biluribum test prepared and produced by the CISF at the behest of one Dr. S.N. Tripathi who is said to have examined the petitioner along with two other Doctors of the Medical Board.

(2.) Learned Counsel relied upon the statement of Dr. S.N. Tripathi, member of the Review Medical Board who on examination stated that though he was the member of the District Medical Board, he did not conduct the clinical examination as one other Dr. R.P. Sharma was the Medical Specialist. It is pointed out that in the light of these circumstances, the findings of the Inquiry Officer are not based upon any credible material both as to the alleged evidence certified by the Medical Board as well as the allegation that he had feigned illness because the Doctor who had examined him in the first instance did confirm that he had a medical problem and had advised rest for seven days.

(3.) Counsel for the respondent Ms. Barkha Babbar contends that the finding of fact rendered by the Inquiry Officer should not be interfered with. She submits that the petitioner was clearly intimated in the roll call that he would have to report for training. Deliberately, and in order to avoid the directive, he came out with the excuse of illness. The Medical Board which examined the petitioner had around the same time, i.e., on 22.6.2002 clearly stated that he was not ill. All these aspects were considered both by the disciplinary authority and the appellate authority. Consequently, this would not be an appropriate case for interfering with the factual findings and setting aside the penalty which is not otherwise severe or grave.