The State Of Odisha vs Sri Ganesh Chandra Sahoo on 10 January, 2020


Supreme Court of India

The State Of Odisha vs Sri Ganesh Chandra Sahoo on 10 January, 2020

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, Hrishikesh Roy

                                                                                 [REPORTABLE]

                                       IN THE SUPREME COURT OF INDIA
                                        CIVIL APPELLATE JURISDICTION

                                        CIVIL APPEAL NO. 9514 OF 2019
                                      (Arising out of SLP(C) No.1731 of 2019)

                      State of Odisha & Ors.                               Appellant(s)


                                                         Versus


                      Ganesh Chandra Sahoo                                 Respondent(s)




                                                  JUDGMENT

Hrishikesh Roy, J.

1. The State of Odisha, the Director General & Inspector General

of Police and others in the police department have filed this appeal to

challenge the judgment and order dated 2.5.2018 in Writ Petition

(C)No.7053/2011. In the impugned judgment, the High Court of

Orissa has substituted the punishment of discharge for the

respondent, to compulsory retirement and to this extent modified the

order dated 2.12.2010 whereunder, the Orissa Administrative
Signature Not Verified

Digitally signed by
SANJAY KUMAR
Date: 2020.01.10
16:50:36 IST
Reason:

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Tribunal1 had dismissed the O.A.No.1459(C)/2003 filed by the

discharged Orderly.

2. Before disciplinary action was taken, the respondent was

serving as a Follower Orderly, in the OSAP 4 th Battalion, Rourkela.

He secured leave from 25.5.1991 to 4.6.1991 to visit his ailing mother

and proceeded to his native village. While on leave, he suffered from

cerebral malaria and was admitted in the C.T. Hospital, Cuttack on

31.5.1991 and thereafter he was medically advised to take rest for 2

months. When the respondent applied for leave extension, on

12.6.1991 (Annexure P1), the Commandant directed the respondent

to appear before the CDMO, Cuttack for medical

examination/treatment and the likely period needed for treatment,

was to be intimated to the Commandant. When the respondent failed

to appear for the medical test, a second communication was issued

on 22.10.1991 in the same line. But since the respondent did not

heed those communications and his whereabouts were not intimated

even after months of leave expiry, the respondent was sternly

directed on 13.3.1992 to have his medical examination done by the

CDMO, Cuttack within 7 days of receipt of the letter, to establish the

genuineness of his sickness plea or else, he will face departmental

action for unauthorized leave overstay.

1

Tribunal
Page 2 of 15

3. Following the failure of the respondent to have himself

medically examined and resume his duties, the departmental

proceeding was initiated against him and the charge memo

(26.10.1992) and other relevant documents were duly served upon

the respondent, at his native place. The respondent, however, did

not submit any explanation and thereafter he refused to accept the

notice and the depositions that were sent to him. Because of the non-

participation of the delinquent, the proceeding had to be conducted

ex parte and the inquiry officer found the respondent guilty of the

charge. Accepting the finding of the inquiry officer, the Commandant

issued the 2nd show cause notice proposing the penalty of dismissal

and eventually, the respondent was discharged from service vide the

Battalion order No.4189 dated 30.12.1993 (Annexure P6). The

discharge order indicates that the delinquent did not respond to the

second show cause notice and in fact the postal department’s

endorsement on the body of the envelope indicated that the

respondent refused to accept the notice sent by the disciplinary

authority.

4. Four years after the discharge order (30.12.1993), the

respondent addressed an appeal to the appellant no.2 herein and

although the appeal was time barred, the Authority considered the

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same on merit but rejected the appeal on the ground that disciplinary

action was in pursuant to a fair inquiry without any procedural

irregularity and the penalty awarded is justified. Following the

rejection of his appeal, the respondent addressed a grievance

petition to the Chief Minister of Orissa which however was rejected by

the Government letter dated 19.9.2000.

5. A decade after the discharge order and three years following

the rejection of the grievance petition, the respondent approached the

Orissa Administrative Tribunal with O.A. No.1459 (C)/2003 to

challenge the disciplinary action. The respondent contended before

the Tribunal that he was suffering from mental ailment and therefore

he was not in a position to respond to the departmental notices sent

to him. In support of his plea of mental incapacity, the respondent

furnished the medical certificate dated 21.1.1998 of Dr. G.C. Kar,

Professor & Head of the Department, Psychiatry, SCB Medical

College, Cuttack, which is in the following terms:

“This is to certify that Shri Ganesh Chandra Sahu,
40 years, S/o Shri Sanatan Sahu, Village Gopalpur, P.O.
Raghunathpur, P.S./District Jagatsinghpur reported before
me with history of mental illness since 3.6.1991 being
referred by his area M.L.A.

He has been treated for a long period because of
repeat cyclic attack of Maniac Depression Psychosis
following cerebral malaria from 03.06.91 till date. During

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the period under treatment he was incapable of taking
responsibility and was advised rest.

Reviewing all my past and present examination
finding, I am of the opinion that he is fit to take up duty
from 22.01.98.

Leave for the period of his absence from
Government duty from 03.06.91 till 21.01.98 may please
be recommended to him on medical ground.”

6. The Tribunal noted the relevant facts and while adverting to the

above medical certificate the Tribunal noticed that the certifying

Doctor has not specifically mentioned that for the period covered by

his certificate (3.6.1991 – 21.1.1998), the respondent was under his

treatment. It was also found to be significant that respondent has not

pleaded that he was under treatment of psychiatrist at any time prior

to issuance of the medical certificate by the psychiatry specialist.

Since the Doctor’s opinion on the patient’s mental health covered

about 7 years period, the veracity of the medical certificate was

doubted by the Tribunal.

7. In their order, the Tribunal adverted to the manner of

conducting the disciplinary proceeding and also the letters and

notices addressed to the delinquent-respondent and the refusal by

the respondent to receive the communication sent to him by the

disciplinary authority. It was then noted that the respondent had

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unsuccessfully approached the appellate authority about four years

after the discharge order.

8. Considering the aforenoted circumstances, the Tribunal held

that adequate reasonable opportunity was afforded to the delinquent

and there were no procedural flaws in the departmental action. The

Tribunal also felt that the case of the respondent was not an

exceptional one covered under Rule 72 of the Orissa Service Code2

With such reasoning the respondent’s OA was dismissed by the

Tribunal on 2.12.2010 (Annexure P13).

9. Aggrieved by the rejection of his OA by the Tribunal, the

respondent approached the High Court of Orissa with the W.P(C) No.

7053/2011 where again, he projected that when he proceeded on

leave to his native village, he suffered from cerebral malaria and was

admitted in the C.T. Hospital, Cuttack on 31.5.1991. Following the

attack of cerebral malaria, the respondent developed psychiatric

problem and with these explanations he tried to justify his lack of

response and non-participation in the disciplinary proceeding.

According to the respondent, soon after he recovered from his

ailments, armed with the medical certificate dated 21.1.1998 he

reported to resume his duty but he was not allowed to re-join the

Battalion.

2

Orissa Service Code, 1939
Page 6 of 15

10. The appellant-State on the other hand projected before the

High Court that on receiving the request for leave extension on

medical ground, the Commandant of the 4 th Battalion had directed the

respondent vide consecutive memos (dated 12.6.1991 and

22.10.1991), to appear before the CDMO, Cuttack but he failed to

present himself for medical assessment of his health condition. In

fact specific communication was sent to the respondent on 13.3.1992

that unless he appears before the CDMO, departmental proceeding

would be initiated against him. The respondent however defied the

Commandant’s direction for his medical examination and resumption

of duty and accordingly he was subjected to departmental proceeding

where he was found guilty of the charge by the inquiry officer. The

Commandant agreed with the finding recorded against the delinquent

and issued him the second show cause notice proposing the

dismissal penalty but faced with no response, the respondent was

discharged from service vide order dated 30.12.1993.

11. The High Court however noted that the respondent has no past

history of unauthorized absence. Then the medical certificate issued

by the Professor & HoD of Psychiatric Department, SCB, Medical

College and Hospital, Cuttack was adverted to and the Division

Bench felt that such medical certificate issued by an expert cannot be

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brushed aside lightly. The Court also made the off the cuff

observation to the effect that patient suffering from cerebral malaria

develop mental illness. Proceeding with such perception, the

punishment was found to be excessive and accordingly the High

Court substituted the penalty of discharge with compulsory

retirement.

12. In support of its decision to substitute the penalty, the High

Court relied on the ratio in Rajinder Kumar v. State of Haryana &

another3 wherein Justice Kurian Joseph speaking for a two judge

Bench of this Court opined that since different punishments are

prescribed under the Rules, the disciplinary authority should exercise

its discretion to decide on the appropriate punishment, taking note of

the gravity of the misconduct and its impact on the service.

13. Representing the appellants, the learned Government Counsel

Ms. Anindita Pujari submits that the High Court had erred in applying

the ratio of a dissimilar case to grant relief to the errant employee.

On the other hand, Mr. Nikilesh Ramachandran, the learned counsel

argues that the respondent’s mental condition during 1991 to 1998

must be borne in mind to understand why he failed to participate in

the disciplinary proceeding and/or why, he did not re-join the battalion

after expiry of leave.

3

AIR 2015 SC 3780
Page 8 of 15

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 standard.

Page 9 of 15

15. 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 Commandant’s direction but remained absent without

authorization, for about seven years. Later, he tried to justify his long

absence without producing any contemporaneous medical records.

16. The impugned judgment reflects that the primary basis for the

High Court to have intervened in favour of the respondent was the

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 respondent’s

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 MLA’s 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

Page 10 of 15
doubted the veracity of the medical certificate, which reported on the

respondent’s 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

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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 respondent’s 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

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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 Court’s 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.
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(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 Tribunal’s rightful decision to decline

relief in the O.A.1459(C)/2003 filed by the respondent.

Page 14 of 15

23. In view of the foregoing, we set aside the impugned judgment

and order of the High Court and allow the appeal. There shall be no

order as to cost.

…………………………J.

[D.Y. CHANDRACHUD]

…………………………J.

[HRISHIKESH ROY]
NEW DELHI
JANUARY 10, 2020.

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