PREM KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the Respondents.

(2.) PETITIONER at the relevant time served as a constable in the Central Industrial Security Force, has questioned the validity of the removal order dated 3.4.2003, Annexure -5 as also the appellate order dated 15.5.2003, Annexure -6 and the revisional order dated 2.7.2004, Annexure -8, passed in connection with a departmental proceeding initiated for two charges, namely, unauthorized over -stayal beyond the period of sanctioned leave with effect from 18.9.2001 to 5.12.2001 and for desertion with effect from 6.12.2001 to 21.6.2002. From the enquiry report dated 15.1.2003, Annexure -3, it appears that charge no. 1 has not been proved as during the period of over -stayal, he has been found to be ill with intimation to the authorities. So far charge no. 2 is concerned, the same has been proved as he has been found deserter for 198 days during the period 6.12.2001 to 21.6.2002. While holding him guilty of the charge of deserter, the Enquiry Officer has noticed the fact that he was being treated for mental illness for the period 6.12.2001 to 2.2.2002 at Barbigha Primary Health Centre and Kanke Mental Hospital and for fever, vomiting and jaundice during the period between 4.2.2002 to 18.4.2002 as also for arthritis during the period 19.4.2002 to 19.6.2002 and in that connection has observed that if the aforesaid ailments were the result of the medicine advised then the delinquent constable ought not to have taken such medicine and on that basis has concluded that without there being any ailment, he has been a deserter for 198 days.

(3.) LEARNED counsel for the petitioner submitted that the genuineness of the prescriptions and certificates dated 18.12.2001, 8.1.2002, 19.1.2002, 2.2.2002, 4.2.2002, 18.4.2002, 19.4.2002, 20.5.2002, 3.6.2002, 10.6.2002 and 20.6.2002, as contained in Annexure -9 series to the supplementary affidavit filed on behalf of the petitioner on 1.12.2005 having not been disputed together with the fact that intimation about the illness of the petitioner during the aforesaid period between 6.12.2001 to 2.2.2002, 4.2.2002 to 18.4.2002 and 19.4.2002 to 19.6.2002 was given to the authorities through registered post and the receipts showing dispatch through registered post was also placed before the Enquiry Officer, in the circumstances, this Court relying on the provisions contained in Section 27 of the General Clauses Act should accept the contents of the prescriptions and certificates, as contained in Annexure -9 series and should hold that the petitioner was not deserter for 198 days for the period 6.12.2001 to 21.6.2002. In support of such plea, learned counsel for the petitioner has placed reliance to the case of Mithilesh Kumar Pathak V/s. The Union of India & Ors., 2007 Supp PLJR 93, paragraphs 14 and 15.