NISSAR AHMAD PARRAY Vs. UNION OF INDIA

JUDGEMENT

(1.) The order of dismissal of the petitioner from service bearing Office Order No. P.VIII.3/06-EC-II/84 dated 26.02.2007 passed by respondent No. 3 is subject matter of challenge in this petition. The petitioner also calls in question an order of consideration bearing No. P.VIII.1/2013-EC-II/84 dated 03.08.2013 issued by respondent No.3 whereby respondent No.3, on consideration of the claim of the petitioner in terms of judgment of this Court dated 19.06.2013 passed in SWP No. 1093/2013, has rejected the same.

(2.) Briefly stated, the facts leading to the filing of this petition are that, the petitioner was appointed as Constable in the 84 Bn of Central reserve Police Force (CRPF) in the year 1994. He performed his duties smoothly till the year 2001 when he suffered some ailment. He claims that despite medical treatment provided to him in the CRPF Hospitals, his health deteriorated which constrained him to apply for 45 days earned leave with effect from 27th October, 2005 to 5th December, 2005. The leave was sanctioned in favour of the petitioner by the competent authority. The petitioner submits that after the expiry of the leave period he could not resume his duties as during the aforesaid leave period his mental condition got worsened. The petitioner further claims that his father forwarded an application to the respondents for extension of leave and also appended therewith the relevant prescriptions issued by the doctors at the Government Phychiatric Hospital, Srinagar. It is further averred by the petitioner that the request of his father for extension of his leave was not accepted by the respondents, who, accordingly, directed the petitioner to report at Unit Headquarters immediately for further duties. Since the petitioner was not mentally fit and in a position to resume his duties, as such, he could not comply with the aforesaid notice and instead submitted a representation to the respondent No.3 through his father through which it was brought to the notice of the respondent No.3 that the petitioner was suffering from mental ailment and thus was not in a position to resume his duties. The petitioner claims that under bonafide belief that his request for leave made through his father had been accepted and his leave extended, he continued with his treatment in the Government Hospital at Srinagar. The petitioner submits that, after recovery from the disease, he went to the respondents for resumption of duty but he was not allowed to do so nor any reason therefor was indicated to the petitioner. Constrained, the petitioner filed SWP No. 1093/2013 which was disposed of by a Bench of this Court on 19.06.2013, directing the respondents to consider the claim of the petitioner. The claim of the petitioner was, accordingly, considered and vide communication dated 03.08.2013 the same was rejected. The petitioner submits that in the aforesaid communication dated 03.08.2013, it was for the first time revealed that his services had been dismissed by the respondent No.3 with effect from 26.02.2007. The petitioner asserts that even after passing of the consideration order, a copy of the order of dismissal was not served upon or provided to the petitioner.

(3.) The grievance of the petitioner, as projected in this petition, in short is that the petitioner was on sanctioned Earned Leave and overstayed the same for reasons beyond his control. He suffered from a mental disorder and was constrained to get medical treatment from doctors including Government Phychiatric Hospital, Srinagar. The Court of Inquiry alleged to have been conducted by the respondents was at his back and in violation of principles of natural justice. It is also his grievance that though the order of dismissal of the petitioner was passed on 26.02.2007 but the same was never communicated to him and, therefore, a non-communicated order cannot be said to have taken effect and the petitioner should be deemed to be in service with all consequential benefits. Reliance has been placed by the petitioner on several judgments of Hon'ble the Supreme Court, more particularly the judgments reported as 2001 AIR SC 3471, State of West Bengal v. M. R. Mondal and another, (2010) 1 SCC 126, Satwati Deswal v. State of Haryana and others and (2012) 4 SCC 786, Krishan Lal v. Food Corporation of India and others, to buttress his submissions and substantiate the grounds of challenge taken in appeal.