UNION OF INDIA Vs. MITHLESH KUMAR PATHAK

JUDGEMENT

(1.) This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 13.04.2007, passed by a learned Single Judge of this Court in CWJC No.5308 of 2004 (Mithilesh Kumar Pathak vs. The Union of India and Ors.), whereby the writ petition has been allowed, and the orders dismissing the petitioner from the services of the Central Reserve Police Force (hereinafter referred to as the CRPF?), on the ground of unauthorized absence and insubordination, has been set aside.

(2.) A brief statement of facts essential for disposal of the appeal may be indicated. We shall go by the description of the parties appearing in the writ proceedings, and shall draw the basic facts from the writ petition, except by specific reference to the present appeal. The writ petitioner (respondent herein), at the relevant point of time, was posted as a constable in the CRPF, considered to be a difficult and non-family posting, in the district of Anantnag, the State of Jammu and Kashmir. The petitioner availed of authorized leave after due permission for the period 21.9.2000 to 12.10.2000. He thereafter, absented himself without permission and information to the authorities for a period of 99 days. The petitioner had, in the meanwhile, received two letters from the authorities which he did not respond to. He reported for duties on 19.01.2001. He was allowed to join, but departmental proceedings were initiated against him, levelling two-fold charges, namely, unauthorized absence for a period of 99 days, and insubordination because of his refusal to respond to the two letters from the Commanding Officer. During the course of enquiry, the writ petitioner took the plea that after he reached his village home, he suffered from infective Hepatitis and was, therefore, advised medication and complete bed rest. He tried to establish his illness on the basis of two medical certificates, issued by the Assistant Civil Surgeon of the nearest government hospital, along with the receipt (s) showing purchase of medicines. In so far as the charge of insubordination is concerned, he did receive the two letters of the Commanding Officer but was unable to respond to the same because his village home is in a remote interior without a post office. His wife is an illiterate lady and was unable to answer to the same. He had concluded that after he recuperated from his illness and was in a position to travel, he reported for duty.

(3.) The learned enquiry officer disbelieved the evidence produced by the writ petitioner on the ground that the two medical certificates and the money receipts showing purchase of medicines was in the same pen, the same hand writing, and the same ink. He, therefore, rejected the same as unworthy of reliance, having been forged and fabricated for the purpose. As to the second charge, he concluded that the explanation submitted by him for his failure to respond to the two letters of the Commanding Officer to be untenable. Consequently, the learned disciplinary authority inflicted the order of dismissal from service. While passing the order of punishment, the learned disciplinary authority also observed that he was a habitual absentee and was unauthorizedly absent on earlier occasions. The relevant portion of the order of the learned disciplinary authority is reproduced hereinbelow for the facility of quick reference: As intimated by 54 Bn. CRPF vice his signal No. W. II.1/00-EC. II dated 30.1.2001 found that he is a habitual case of O. S. L. and his previous O. S. L. details are as under: