PRATAP SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner is a Personal Assistant to the Divisional Commissioner, Kanpur Division, Kanpur and has approached this Hon'ble Court for quashing the order dated 11.2.2005 by which his application for medical leave had been rejected and was asked to report for duty. The petitioner has also challenged the order dated 14.2.2005 by which he has been suspended pending contemplation of disciplinary proceeding. The learned counsel for the petitioner submitted that the impugned orders have been passed on account of the fact that the Commissioner was inimical towards the petitioner and was bent upon in not only harassing the petitioner in various ways but systematically in order to suspend the petitioner for various charges. The petitioner has alleged maladies against the Commissioner and further submitted that even otherwise the charges levelled against the petitioners were not serious in nature which if proved in the enquiry proceedings would not result in the passing of a major punishment.

(2.) It transpires that the petitioner was forwarding complaints received by post for investigation under his own signatures without placing them for its approval before the Commissioner. In this regard the petitioner was issued a show cause notice to show cause why action be not taken against him. By another order dated 14.12.2004 the petitioner was transferred from the Camp Office of the Commissioner to the Office of the Commissioner at Swadeshi House, Kanpur. It transpires that since the passing of the aforesaid two orders the petitioner took medical leave on the ground that he had met with a road accident on the night of 8.12.2004 and that he suffered a concussion in the head and that the Doctors had advised him complete bed rest. The petitioner in this regard applied for Medical Leave for a day or two and thereafter kept extending his leave and continued to be on leave till the impugned order of suspension was passed. From the record it transpires that on 5.1.2005 the petitioner applied for extension of leave and on this application the petitioner was directed to appear before the Chief Medical Officer. The Chief Medical Officer in his letter dated 19.1.2005 intimated the Commissioner that he was not in agreement with the recommendation given by the E.N.T. surgeon and therefore, the petitioner should be medically re-examined. On this basis, the Commissioner vide letter dated 20.1.2005 directed the petitioner to appear before the Additional Commissioner, Regional Medical Board on 24.1.2005 and get himself medically examined. Inspite of the receipt of the letter, the petitioner did not appear before the Board and vide letter dated 25.1.2005, the petitioner requested that some other date be given so that he could appear before the Board. The Board on the request of the petitioner issued a letter dated 25.1.2004 directing the petitioner to appear for medical examination on 1.2.2005. This letter was again duly received by the petitioner and inspite of the receipt of the letter, the petitioner did not appear before the Medical Board on 1.2.2005. The petitioner thereafter wrote a letter dated 1.2.2005 to the Additional Director of Medical Board requesting him to give another date and again the Medical Board fixed 8.2.2005 for medical examination on which date the petitioner again did not appear.

(3.) The reason for not appearing before the Medical Board was basically because the petitioner had filed Writ Petition No. 5754 of 2005 challenging the transfer order dated 14.12.2004. On one hand, the petitioner was pursuing his remedy before the Court against the transfer order, on the other hand, the petitioner was avoiding the medical examination as was as possible, for reasons best knows to him or that he had a fear that the medical examination would expose him and would bring out the correct facts with regard to his illness/injury. Since the petitioner was continuously applying for medical leave without any medical certificate and inspite of repeated directions to appear before the Chief Medical Officer, which the petitioner failed to appear, the Commissioner had no choice but to issue an order dated 11.2.2005 cancelling his leave application on the ground that the leave application was not supported by any medical certificate and was also in violation of Rules 67 and 97 of the Volume 2, Part 2 to 4 of the Financial Hand Book and therefore, directed him to report for duty within three days. Since the petitioner did not report for duty, the Commissioner issued another order dated 14.2.2005 suspending the petitioner on a variety of charges.