LAKHVEER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner competed for direct recruitment to the post of Constable (General Duty) in the Indo-Tibetan Border Police Force (ITBP). He qualified the examination conducted by the Staff Selection Commission (NWR), Chandigarh. He was called for detailed medical examination vide letter dated 6th August, 2011. He cleared the medical examination. He was enrolled on 3 rd November, 2012, taken on duty and was put on probation. He was then sent to training/duty and posted at Recruit Training Centre, Shivagangai, Village Illupaikudi, PO Padamathur, District Shivagangai, Tamil Nadu. He claims that he fell sick on 23rd March, 2013. He claims that he was treated there but his illness persisted. He says that he requested the respondent authorities to grant him leave for treatment but his prayer was declined. No material particulars have been pleaded in the petition or documents produced for this Court to know what exactly happened to the petitioner after 23 rd March, 2013. It is his say that he left the unit with intimation to the officer concerned. No evidence to establish this fact has been placed on record. The explanation remains only his bald statement. He admits that he returned to his village in Bathinda to get treatment for typhoid and back pain and remained admitted according to him in Mittal Private Hospital, Bathinda. During his absence, he was visited with a notice dated 29th April, 2013 issued by the Commandant, 45th Battalion, ITBP, Idayapatti Camp, PO Amur South, District Madurai, Tamil Nadu respondent No. 3 vide office memo No. 2095 dated 11th April, 2013 and 2323-24 dated 25th April, 2013 which both were letters calling him to join duty forthwith, failing which, his services would be terminated. A third notice was issued on 29th April, 2013 again asking him to report for duty, despite his failure to do so on two prior notices. He did not respond to the show cause notices. He, however, admits receipt of notice dated 29th April, 2013 which he says "shocked" him. The petitioner pleads that he was still undergoing treatment. He was thus unable to attend duty. Accordingly, he sent a written request to grant him leave of a month as he was still unwell. If he sent such request, then no evidence of the same has been placed on record by way of a copy of such letter or its date of making or mailing. The Commandant, 45th Battalion, ITBP acting as the appointing authority/disciplinary authority of Constables (GD) passed an order dated 21st May, 2013 terminating the services of the petitioner thereby discharging him from service by invoking the provisions of rule 14 of the Indo-Tibetan Border Police Force Rules, 1994 with effect from 23rd March, 2013, the date when he absented from work without intimation or leave sanctioned. His name was struck off the rolls. This order has been passed during the period of probation. The petitioner has before this Court in this petition filed under Article 226 of the Constitution impugned the termination order.

(2.) Thereafter, on 17th September, 2013, the petitioner made a representation explaining his absence on account of typhoid and back pain, for which ailments he was admitted for treatment in a private hospital in Bathinda. He states in the representation that after treatment he returned to the camp on 11th July, 2013 but the adjutant denied his re-joining. He relied on medical documents which have not been produced on the record of this case. It is only pleaded that the same can be shown at the time of arguments, if need be. He requested an interview with the "DG" through the letter dated 17th September, 2013.

(3.) Learned counsel for the petitioner relies on numerous decisions of this Court in State of Punjab v. Parkash Chand Constable,1996 4 JT 762, Om Parkash v. State of Haryana, 1995 3 SCT 170 , Mahi Pal v. State of Haryana, 1995 3 SCT 170, State of Haryana v. Lakhan Lal, 1991 2 SCT 718, State of Haryana v. Laxman Singh,1991 7 SLR 799, Lakhi Ram v. Union of India,1989 7 SLR 365, CWP No. 15262 of 1998 decided on 1.12.1998, CWP No. 1279 of 1996 decided on 10.9.1997, CWP No. 11628 of 1995 and CWP No. 6797 of 2005 and of the Supreme Court in R. Sulochana Devi v. D.M. Sujatha, 1993 3 JT 617, to contend that absence from duty is not the gravest act of misconduct justifying termination, discharge, removal or dismissal. It is his further case that the impugned order has been passed in violation of the principles of natural justice since he was not heard before the order was passed. He says that the respondents are enjoined to react or respond to a representation served by a person within a reasonable time because there are two obvious advantages of such action, i.e., the person would know how and for what reasons he has been denied the relief and the reasoned version of the State would be on judicial record before the Court for its judicial scrutiny at the very initial hearing. In this way, the respondents have not dared either to respond to the representation or to the legal notice of the petitioner. Hence, the inaction on the part of the respondents clearly amounts to willful disobedience of the directions issued by the Division Bench of this Court in CWP No. 4382 of 2002 decided on 21st March, 2002; Satbir Singh v. State of Haryana and others which holds that similarly situated persons should be given similar treatment and not compelled to approach Court for relief.