[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)

J U D G M E N T

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

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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 4th 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

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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

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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 4th 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

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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.  

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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

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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.

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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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