Allowed

Ex Rt/Gd Keshab Dhakal v. the Union of India and 5 Ors.

Gauhati HC6 Jun 2022WP(C)/728/2018

Case brief

AI extract

What is this about?

In a service termination case, the High Court held that the authority terminated a temporary employee without considering a favorable medical opinion obtained via referral. The order was found arbitrary and contrary to Rule 6 of CCS (Temporary Services) Rules, 1965, requiring evidence of permanent incapacity.

What did the court decide?

Impugned termination order set aside and matter remanded to take a fresh decision considering the medical opinion dated 23.12.2017.

Ex Rt/Gd Keshab Dhakal Vs the Union of India… — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/8

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GAHC010019952018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/728/2018

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EX RT/GD KESHAB DHAKAL

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FORCE NO 175152892, S/O. LATE KUL PRASAD DHAKAL, R/O. VILLAGE BORENGAJULI, P.O. SUKLAI, DIMAKUCHI, DISTRICT- UDALGURI, B.T.A.D., ASSAM, PIN-784527

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VERSUS

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THE UNION OF INDIA AND 5 ORS.

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REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN-110001

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2:THE DIRECTOR GENERAL CENTRAL RESERVE POLICE FORCE CENTRAL GOVERNMENT OFFICE COMPLEX NEW DELHI PIN-110003

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3:THE INSPECTOR GENERAL (MEDICAL)

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COMPOSITE HOSPITAL CENTRAL RESERVE POLICE FORCE AMERIGOG GUWAHATI KAMRUP (M) ASSAM PIN-781023

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4:THE INSPECTOR GENERAL OF POLICE MANIPUR AND NAGALAND SECTOR HEAD QUARTER CENTRAL RESERVE POLICE FORCE IMPHAL MANIPUR

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Page No.# 2/8

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PIN-795113

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5:THE DEPUTY INSPECTOR GENERAL OF POLICE (MEDICAL) COMPOSITE HOSPITAL CENTRAL RESERVE POLICE FORCE LANGJING IMPHAL MANIPUR PIN-795113

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6:THE COMMANDANT GROUP CENTRE CENTRAL RESERVE POLICE FORCE IMPHAL MANIPUR PIN-795113

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Advocate for the Petitioner : MR. R MAZUMDAR

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 06.06.2022

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Heard Mr. R. Mazumdar, learned counsel for the petitioner as well as Mr. H. Gupta, learned CGC for the respondents.

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In brief, the case of the petitioner is that he was offered appointment by letter dated 13.06.2017, in the post of Constable (General Duty) in the Central Reserve Police Force (CRPF in short). In course of recruitment process, the petitioner was medically examined on 23.08.2017 at the Composite Hospital, CRPF, Imphal and was declared fit to undergo basic training. Thereafter, in the month of September, 2017, the petitioner had suffered high fever with pain in his chest and he was diagnosed of “known case of left sided TB pleural effusion ATT w.e.f. 25.09.2017 with left lower lobe collapse.” Accordingly, the petitioner

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was referred for further evaluation and needful by the IG (Medical)/ Medical Superintendent, Composite Hospital, CRPF, Guwahati. The petitioner was then admitted at GMCH, Guwahati on 10.11.2017 and he was discharged on 27.11.2017, after conducting “thoracotomy and decortications” under general anaesthesia on 15.11.2017, and as per discharge certificate dated 27.11.2017, his condition had improved. Thereafter, the Composite Hospital, CRPF, Guwahati had issued a discharge slip to the petitioner on 15.12.2017, with a note to the effect that “as per medicine specialists of CH GTY’s opinion, patient is permanently unfit for combat training and duties in the force”. By a signal dated 18.12.2017, the competent authority had desired a proper assessment of the petitioner for his retention in force and his fitness for training, which was followed by a referral of the petitioner by letter dated 22.12.2017, issued by the Composite Hospital, CRPF, Imphal for the evaluation of the petitioner for any active and strenuous activities in future since the petitioner was in active service.

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It is projected that the petitioner was referred to OPD Jawaharlal Nehru Institute of Medical Science and Hospital, Imphal, where the doctor had opined that the petitioner is medically fit to resume his normal duty. However, by a communication dated 26.12.2017, the service of the petitioner was terminated pursuant to Rule 6 of the CCS (Temporary Services) Rules, 1965 (hereinafter referred to as ‘1965 Rules’ for brevity). The petitioner had also relied on a medical certificate dated 19.01.2018 issued by the GMCH, indicating that he was fit to resume his duties. Accordingly, the petitioner has challenged the order of termination dated 26.12.2017 by filing this writ petition under Article 226 of the Constitution of India.

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The learned counsel for the petitioner has submitted that the impugned

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order was not sustainable on the ground that materials available before the Deputy Inspector General of CRPF were not sufficient to lead to the termination of the petitioner from service. It is also submitted that the termination of the petitioner from service was bad as there was no compliance of Rule 6 of the 1965 Rules. It is further submitted that as the competent authority of the CRPF had wanted proper assessment of the petitioner for his retention in force. Hence, it was submitted that in ignorance of the signal dated 18.12.2017 and referral order dated 22.12.2017 and without considering the medical opinion dated 23.12.2017, which was available with the CRPF, the Deputy Inspector of General, CRPF could not have to terminated the service of the petitioner without evaluating the medical condition of the petitioner, which is the requirement of Rule 6 of the 1965 Rules. In support of his submission, the learned counsel for the petitioner has placed reliance on the case of Union of India Vs. Rajpal Singh (2009) 1 SCC 216 as well as Sakuntala Basumatary Vs. Union of India, 2000 (2) GLT 11.

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Per contra, the learned CGC has submitted that as the petitioner had not completed his training, and therefore, the petitioner was not enrolled as a member of the CRPF and thus, the petitioner was liable to be dismissed without any notice as per the offer letter dated 13.06.2017. It is also submitted that the respondents have a right to constitute a review medical board in respect of the petitioner in the event the Court finds any merit in the case projected by the petitioner. Accordingly, it is submitted that the impugned order passed by the Commandant, Group Centre, Imphal dated 26.12.2017, was lawful and not liable to be interfered with. It is also submitted that as the petitioner was not enrolled as a member of the CRPF, the respondent authorities were not obliged to take into consideration the medical opinion given by the referral hospital. It is further

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submitted that despite receipt of the termination order dated 26.12.2017, the petitioner had not produced the purported fitness certificate dated 23.12.2017, nor any information was provided to the Commandant, Group Centre, CRPF, Imphal. It is also submitted that considering the nature of disease and the medical treatment provided to him, the petitioner would not be fit for any strenuous combat duty.

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Having examined the materials available on record, it is seen that the respondent authorities, specifically the Commandant, Group Centre, Imphal (respondent no.6) had not invoked para 3 (d) of the offer letter dated 13.06.2017 to terminate the service of the petitioner. It may be mentioned that the learned counsel for the petitioner had submitted that as per clause (h) of paragraph 3, it is only on the appointment to the post of Constable/GD in CRPF that the petitioner could have undergone basic training for specified period. Clause (h) of paragraph 3 is quoted below:

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“(h) On appointment to the said post you will have to undergo basic training of specific period. In case you sustain any injury during the period of basic training and you are declared as permanently incapacitated for service in CRPF, your service will be liable to be terminated at any time without notice. It will be dealt according to CCS (Temporary) Services Rules.”

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It may also be relevant to quote Rule 6 of 1965 Rules, which provides as follows:

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“6. Notwithstanding anything contained in rule 5, the services of a temporary Government servant may be terminated at any time without notice on his being declared physically unfit for continuance in service by an authority who would have been competent to declare him as permanently incapacitated for service had his appointment been permanent.”

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In the present case in hand, the service of the petitioner was terminated by the impugned order dated 26.12.2017, by invoking the provisions of Rule 6

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of 1965 Rules. Therefore, the competent authority was required to take note of the opinion dated 23.12.2017, given by the referral hospital i.e. Jawaharlal Nehru Institute of Medical Science and Hospital, Imphal. In the present case in hand, the petitioner is found to have been referred to the said Jawaharlal Nehru Institute of Medical Science and Hospital vide referral order issued by the Medical Superintendent/ In-charge Medical Officer, Composite Hospital, CRPF, Imphal. In this regard, the learned counsel for the petitioner has submitted that the practice being followed in the CRPF is that once a patient is referred to another hospital for an opinion, the concerned CRPF staff is escorted by the CRPF personnel and that the referral opinion is retained by the Composite Hospital, CRPF, Imphal, which had issued the referral order, and it is the referral hospital i.e. Composite Hospital, CRPF, Imphal, would be having the custody of the medical opinion.

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The learned counsel for the petitioner has projected by referring to the Signal dated 18.12.2017 (Annexure-6), that the said signal was issued by Digcent (Adm) M&N to Digcent CH Imphal, which contains the following- “Info: Polcent (Med) CH GTY/ Digcent GC Imp” , and it is submitted that the term “Digcent” would mean DIG and “Polcent” would mean Inspector General of CRPF. It is seen from the said signal, that the concerned DIG (Administration) had requested the DIG, Composite Hospital, Imphal to have the petitioner evaluated with information of the said signal to the Inspector General (Med). It is not disputed at the Bar that the DIG (Administration), who had issued the signal dated 18.12.2017 was higher in rank than the Commandant, Group Centre, who had terminated the service of the petitioner. Thus, the only possible view is that the impugned order of termination dated 26.12.2017, was in ignorance by signal dated 18.12.2017.

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In connection with the provisions of Rule 6 of 1965 Rules, in paragraph 12 and 13 of the case of Sakuntala Basumatary (supra), this Court had observed as follows:

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“12. There must be some material or evidence on record on the basis of which the appropriate authorities may form an opinion by recording a definite finding to that effect. In the absence of such finding or material on record neither inference can be drawn nor conclusion can be arrived at that situation. The above approach of the appropriate authorities cannot be said to be legal and in accordance with lay inasmuch as the authorities were not right in observing that the petitioner would not be able to continue her service. It is also submitted that the satisfaction as contemplated by Rule 6 of Central Civil Service Rules, 1965 must be based on objective facts, ie permanent incapable. There must be evidence and material to arrive at the conclusion and satisfaction. Termination from service of the petitioner and/or grounds and/or reasons put forth by the respondents is a mala fide intention and a negative finding for not accepting the case of the petitioner for reinstatement in service. Hence, it is incumbent upon the appropriate authorities to come to a present finding and definite conclusion that the petitioner is invalid. In the absence of such a finding or conclusion, no order/ opinion can be made is wholly arbitrary prima facie illegal, without jurisdiction not sustainable in law. As such, the respondents should be directed by this Hon'ble Court that the petitioner be reinstated in service with all monetary and service benefit.

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Since the respondents could not prove, declare and for confirm the alleged disease of the petitioner by the medical authorities concern to be completely and permanently incapacitated for further service as she was on duty at the time of the receipt of order of termination dated 11.10.96, the order of termination rendered invalid and liable to be set aside and/quashed.”

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Therefore, the Court is inclined to hold that on 26.12.2017, when the impugned order was passed by the Commandant, Group Centre, CRPF, the said authority was not provided with the medical report dated 23.12.2017, issued by the Jawaharlal Nehru Institute of Medical Science and Hospital, Imphal, which was given/ issued pursuant to referral order dated 22.12.2017. Hence, the Court finds that this is a fit and proper case to set aside the impugned order under no. R.II-2/2017-EC-V dated 26.12.2017, passed by the Commandant, Group Centre, CRPF, Imphal, and the matter is remanded back to the said authority to take a fresh decision regarding the petitioner by considering the medical opinion/

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certificate dated 23.12.2017, given by the Jawaharlal Nehru Institute of Medical Science and Hospital, Imphal pursuant to referral order given by the Medical Superintendent/ In-charge Medical Officer, Composite Hospital, CRPF (Annexure-7) dated 22.12.2017, which in turn was issued pursuant to the signal dated 18.12.2017, by the DIG (Administration), CRPF.

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It is also provided that it would be open to the respondent authorities to hold fresh medical examination of the petitioner, if so advised.

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The petitioner shall produce a certified copy of this order before the Commandant, CRPF Group Centre, Imphal and on production of the certified copy of this order, the said authority shall do the needful within a period of 1(one) month from the date of service of the certified copy of this order.

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This writ petition stands allowed to the extent as indicated above.

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JUDGE

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Comparing Assistant

Ex Rt/Gd Keshab Dhakal v. the Union of India and 5 Ors.

Case brief

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Ex Rt/Gd Keshab Dhakal v. the Union of India and 5 Ors.

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