Case: State of Odisha &amp; Ors Vs. Ganesh Chandra Sahoo

medical certificate (dated 21.9.1998), issued by Dr. G.C. Kar, who was the then Professor & HoD of Psychiatric Department, SCB, Medical College and Hospital, Cuttack. But interestingly, the certifying Doctor does not categorically mention that the respondent was under his treatment since 1991. Most unusually, the certificate reflects that on reference by the local MLA, the respondent reported before the specialist Doctor on 21.1.1998. Therefore the respondents was not a referral case by a Doctor, who might have been treating the respondent during 1991 to 1998. If the respondent was a patient under Dr. Kar, there would have no need for the MLAs reference and the Doctor could have issued the certificate based on his own line of treatment and medication. It is for such logical fallacy, the Tribunal doubted the veracity of the medical certificate, which reported on the respondents purported mental incapacity, between 1991 and 1998. 17. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30.12.1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to crosscheck his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee-employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30.12.1993. 18. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar (supra) where the concerned constable was unauthorizedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998. 19. If the respondent had actually suffered from cerebral malaria since 3.06.1991 and was subjected to frequent cyclic attack of Maniac Depression Psychosis, as claimed, necessary proof of such suffering from the concerned Doctor/Hospital who were providing him the treatment, ought to have been produced. Moreover, he never allowed for cross verification of his pleaded medical condition by presenting himself before the CDMO in 1991 or thereafter. Instead, the respondent only produced the 21.1.1998 certificate of the HoD, Psychiatry who may have had no role in the treatment of the respondent. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the Doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by Doctor/Hospital which might have been involved with the respondents treatment during 1991 to 1998. 20. In the present case, we are inclined to think that the respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing the certificate of a specialist Doctor who may not have treated the respondent. Significantly, although the respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, the High Court should not have invoked the self serving medical certificate. The Court wrongfully relied on Rajinder Kumar (supra) where this Courts intervention was in entirely different circumstances. Besides the doctrine of proportionality is not attracted in the present facts. 21. There is another aspect which will require our consideration. Before the Tribunal, the counsel for the respondent submitted that for an employee suffering from mental ailment, his situation should be treated as an exceptional case under Rule 72 of the Orissa Code which deals with leave for Government servant remaining absent for over five years. Under Rule 72, no leave of any kind is admissible for period exceeding five years unless the Government determines the case to be one of exceptional circumstances. The Rule 72 is quoted below for ready reference: 72. (1) No Government servant shall be granted leave of any kind for a continuous period exceeding five years. (2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962. On careful reading of the above provision we are quite sure that the situation here is not one of exceptional circumstances. In fact the veracity of the self-serving medical certificate to justify the seven years absence, was correctly doubted by the Tribunal. 22. In the above circumstances, the High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunals rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. In order to decide on the applicability of the ratio in Rajinder Kumar (supra), we must advert to the facts in this case. Here the respondent after availing leave for nine days (from 25.5.1991 to 4.6.1991), did not report back to his Battalion until 1998. But long before that, the respondent having not presented himself before the CDMO, for his medical examination, was proceeded departmentally and was discharged from service on 30.12.1993. Therefore, unlike in the case of Rajinder Kumar (supra) where the concerned delinquent was absent only for 37 days, the respondent herein did not report back for duties for about seven years. Significantly, he thwarted his medical examination by disregarding the direction of the Commandant to present himself before the CDMO, Cuttack. In the cited case where delinquent was absent for 37 days, the punishment of discharge was found to be disproportionate and it was altered to compulsory retirement. But in the present case, the respondent failed to report back for duty for about seven years after availing leave for 9 days. Therefore, the nature and degree of misconduct in the two cases are not of the same category and hence the two cases with different facts could not have been decided, in our opinion, with the same judicial standard15. It is also significant that the High Court failed to notice that the respondent did not present himself for the official verification of his medical status by the CDMO and thereby prevented confirmation of his pleaded medical condition. In this manner, the respondent not only defied the Commandants direction but remained absent without authorization, for about seven years. Later, he tried to justify his long absence without producing any contemporaneous medical recordsTherefore the respondents was not a referral case by a Doctor, who might have been treating the respondent during 1991 to 1998. If the respondent was a patient under Dr. Kar, there would have no need for the MLAs reference and the Doctor could have issued the certificate based on his own line of treatment and medication. It is for such logical fallacy, the Tribunal doubted the veracity of the medical certificate, which reported on the respondents purported mental incapacity, between 1991 and 199817. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30.12.1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to crosscheck his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee-employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30.12.199318. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar (supra) where the concerned constable was unauthorizedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the Doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by Doctor/Hospital which might have been involved with the respondents treatment during 1991 to 199820. In the present case, we are inclined to think that the respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing the certificate of a specialist Doctor who may not have treated the respondent. Significantly, although the respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, the High Court should not have invoked the self serving medical certificate. The Court wrongfully relied on Rajinder Kumar (supra) where this Courts intervention was in entirely different circumstances. Besides the doctrine of proportionality is not attracted in the present factsOn careful reading of the above provision we are quite sure that the situation here is not one of exceptional circumstances. In fact the veracity of the self-serving medical certificate to justify the seven years absence, was correctly doubted by the Tribunal22. In the above circumstances, the High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunals rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondentBefore the Tribunal, the counsel for the respondent submitted that for an employee suffering from mental ailment, his situation should be treated as an exceptional case under Rule 72 of the Orissa Code which deals with leave for Government servant remaining absent for over five years. Under Rule 72, no leave of any kind is admissible for period exceeding five years unless the Government determines the case to be one of exceptional circumstances.