Court No. - 13
Case :- WRIT - A No. - 21222 of 2006 Petitioner :- Jitendra Kumar Respondent :- Union Of India And Others Counsel for Petitioner :- H.L. Pandey,S.N.Yadav Counsel for Respondent :- A.K. Nigam, A.S.G.I.,S.K.Rai
Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioner and learned counsel for the respondents.
The petitioner was selected as recruit constable in 169 Batallion C.R.P.F. Allahabad on 18.8.2004. The petitioner reported for training on 22nd August, 2004, however between period of training, the petitioner is alleged to have deserted and did not continue for training between 5.5.2005 to 09.5.2005 and further w.e.f 23rd July, 2005 to 30th July, 2005.
The defence of the petitioner is that his mother was ill and he was not granted leave during training and that is why he rushed to his village to attend his ailing mother. Although, by the impugned order dated 30th July, 2005, the period for which the petitioner is said to have deserted battalion have been regularized and yet looking to his overall conduct invoking the provision of Rule 5(1) of Central Civil Services (Temporary Service) Rules, 1955 read with Rule 16 of the The Central Reserve Police Force Act, 1949, the services of the petitioner have been terminated. The petitioner preferred an appeal raising various grounds of his absence during period in question that on account of his mother suddenly falling ill, he had no option but to attend his ailing mother as he was refused leave. The appellate authority has considered the reply of the petitioner and rejected the appeal.
Having heard the learned counsel for the parties, I am of the opinion that once the person takes plea that he has deserted the place of training on account of refusal of leave to attend sudden causality that occurred as in the present case, mother of the petitioner had fallen ill, the duty is that while reporting back to the unit he should supply medical treatment papers of the mother to show his bonafide. I find that even while preferring the appeal, no such document was submitted to the appellate authority for its consideration and, therefore, in absence of any such document or evidence being led, the appellate authority has rightly concluded that the petitioner did not deserve to be retained in force on account of this conduct by leaving training or leaving force without any intimation. The petitioner has relied upon certain medical certificates which has been brought on record as Annexure nos. 1 and 2 to the writ petition. I find that their medical certificates were issued on 11.5.2005 by Medical Officer of Community Health Centre, but the same is not on the pad, inasmuch as this medical certificate if was in possession of the petitioner, it is not explained as to why the petitioner had not filed the same while filing appeal before appellate authority. Having not done so and the petitioner having not led any such evidence now cannot ask this Court to look into and examine veracity of any such medical certificate at this stage in exercise of power under Article 226 of the constitution of India.
It is well settled that Courts cannot place itself akin to a position of disciplinary authority to hear the defence of a delinquent employee and then appreciate evidence to reach to a different conclusion. There are decisions to the effect that Courts even cannot be sit in appeal to re- appreciate the evidence while examining the findings arrived at by the disciplinary authority. The Courts have to examine as to whether there is any flaw in the decision making process. Nothing has been argued as to where and why the action taken is fallible one to warrant interference under Article 226 of the Constitution.
The petitioner was a trainee and has been discharged from service under the Temporary Government Civil Services Rules. Learned counsel for the petitioner has not been able to point out any manifest illegality/infirmity in the impugned orders. I do not find any error much less legal and substantial one in the orders of the disciplinary authority or the appellate authority.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 24.4.2018 Sanjeev