IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1697 of 2010 IN CWJC No. 4779 of 2010 ============================================ The Union of India & Ors. - Appellants Versus Sanjay Kumar Singh – Respondent ============================================ Appearance: For the Appellant: Mr. Mithilesh Kumar Rai, Sr. C.G.C. Mr. Shiv Kumar, C.G.C. For the Respondent: Mr. Rajiv Ranjan Pandey ============================================ CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 04. 03.11.2010 This Appeal under Clause 10 of the Letters Patent preferred by the Union of India and others arises from the judgment and order dated 26th April 2010 passed by the learned Single Judge in above C.W.J.C. No. 4779 of 2010. The respondent-writ petitioner was employed as Constable in Central Reserve Police Force. After training he was posted under the Commandant, C.R.P.F. Jalandhar, 137 Battalion. While on probation he applied for earned leave for 10 days. He was required to report for duty at evening parade on 29th April 2009. He, however, did not report for duty on 29th April 2009. He remained absent from duty from 30th April 2009 till the termination of his service on 28th July 2009. In view of his continuous absence, on 29th June 2009 the writ 2 petitioner was given notice of termination of service effective from 28th July 2009. Admittedly the petitioner did not respond to the notice. Consequently his service stood terminated on 28th July 2009. According to the petitioner while on leave he had suffered Hepatitis. He had sent the intimation of his illness accompanied by the medical record to the Deputy Inspector General of Police under Certificate of Posting on 4th May 2009 and on 10th June 2009. He was not declared fit for service until 23rd July 2009. Before he could report for duty his service was terminated under notice dated 29th June 2009. Feeling aggrieved he preferred departmental appeal before the Inspector General of Police, Chandigarh. The appellate authority under his order dated 7th December 2009 rejected the appeal. It was held that the overstay after expiry of the period of leave was deliberate and without a valid reason and that he did not inform about his illness to the Group Commandant, C.R.P.F., Jalandhar and that the plea that he had sent the letters and the medical record under Certificate of Posting was not true. Even though he was declared fit for duty on 23rd July 2009 and his service stood terminated on 28th July 2009 he did not report for duty after he was declared fit. Feeling aggrieved the writ petitioner filed the above C.W.J.C. No. 4779 of 2010 before this Court. The learned Single Judge was of the opinion that there was a 3 presumption of service to the addressee and that on the date he was declared fit his service was already terminated. The learned Single Judge allowed the writ petition, quashed the notice of termination of service and directed that the writ petitioner be reinstated in service. Therefore, the present appeal. The appeal is contested by learned Advocate Mr. Rajiv Ranjan Kumar Pandey. He has submitted that the overstay after the sanctioned leave need not entail termination of service. He has relied upon postal certificate and strenuously urged that the writ petitioner did inform the higher officer about his illness. He has submitted that mere overstay after the leave cannot be said to be a misconduct as held by the Hon’ble Supreme Court in the matter of Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and another reported in A.I.R. 2004 S.C. 2131. We are unable to agree with the learned Advocate. In the matter before the Hon’ble Supreme Court, the Constable employed in the Delhi police had fallen ill while on duty, was removed to a police dispensary and from there shifted to the Government dispensary at Gwalior, his home town. On account of his illness he had applied for leave. The leave from 7th October 1994 to 14th December 1994 without pay was sanctioned. During the period of sanctioned leave notice of termination of his service was issued on 15th 4 November 1994. In the backdrop of the aforesaid facts the Hon’ble Supreme Court held that; “…..Once the leave for the period in question was sanctioned, the employee’s legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service……’’ If we peruse the facts of the cases, one before the Hon’ble Supreme Court and one before us, we have no hesitation to say that the aforesaid observation made by the Hon’ble Supreme Court will have no applicability to the present case. As recorded hereinabove, the writ-petitioner remained absent from service after expiry of the period of leave. If he were not well and could not report for duty, at least he was expected to inform his immediate superior about his illness and his inability to report for duty. In the present case the authority below has recorded a categorical finding that no such intimation was received from the writ petitioner. On perusal of the record it is evident that even if we believe that the writ petitioner did inform the higher authority, the authority whom he informed was Deputy Inspector General of Police and not the Group Commandant, his immediate superior to whom 5 he was required to report. We, therefore, hold that not only the writ petitioner remained absent from service without leave since 30th April 2009; he did not send intimation to his superior authority the Group Commandant. Considering the fact that the writ petitioner had just completed the training and was posted in Group Centre, C.R.P.F. Jalandhar, 137 Battalion on probation, laxity in performance of duty cannot be overlooked. If the authority below has treated it as an act entailing order of discharge, we do not propose to interfere with the same. The learned Single Judge appears to have misread the order of the authority below. The learned Single Judge has recorded that the appellate authority did believe the issuance of the medical record produced by the writ petitioner. We may note that the question was not of the genuineness of the medical record. The question was whether the writ petitioner did inform his superior authority about his illness and whether did he apply for extension of leave. It is also not true that the appellate authority did believe the writ petitioner. On the contrary the appellate authority has recorded a categorical finding against the writ petitioner. In our opinion, the learned Single Judge was not justified in interfering with the order of termination of service of the writ petitioner made by the appointing authority and confirmed by the appellate authority. 6 When we expect discipline from the government servants, more particularly the Para Military Force, we have to allow the concerned authority to take measures to instill discipline amongst the members. In view of the above discussion, the Appeal is allowed. The impugned judgment and order dated 26th April 2010 passed by the learned Single Judge in above C.W.J.C. No. 4779 of 2010 is set aside. C.W.J.C. No. 4779 of 2010 is dismissed. There shall be no order as to costs. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)