STATE OF ODISHA & ORS.versusGANESH CHANDRA SAHOO

                         [2020] 4 S.C.R. 755                              755


                    STATE OF ODISHA & ORS.                                A
                                  v.
                  GANESH CHANDRA SAHOO
                   (Civil Appeal No. 9514 of 2019)
                         JANUARY 10, 2020                                 B
           [DR. DHANANJAYA Y. CHANDRACHUD
                AND HRISHIKESH ROY, JJ.]
      Service Law:
       Discharge from service – Pursuant to departmental                  C
proceedings on the charge of overstay of leave for about 7 years –
Non-participation in the proceedings, despite repeated
communication from the Department – Delinquent produced medical
Certificate as to his mental illness – Departmental appeal dismissed
– Application before Administrative Tribunal – Doubting the veracity
                                                                          D
of the Medical Certificate, Tribunal rejected the case of the
delinquent – High Court on the basis of Medical Certificate,
substituted the punishment of ‘Discharge’ to ‘Compulsory Retirement’
– Appeal to Supreme Court – Held: The delinquent remaining away
from duty since 1991-1998 without producing contemporaneous
medical record has not only been irresponsible and indisciplined ,        E
but tried to get away with, by producing medical certificate of
Specialist Doctor – Tribunal, in the facts of the case, rightly doubted
to veracity of the Medical Certificate – High Court should not have
invoked the self-serving medical certificate, overlooking the gravity
of misconduct – Orissa Code – r .72.
                                                                          F
      Allowing the appeal, the Court
      HELD: 1. The High Court f ailed 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,            G
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. [Para 15][762-D]

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                                 755
756            SUPREME COURT REPORTS                      [2020] 4 S.C.R.


A           2. The primary basis for the High Court to have intervened
      in favour of the respondent was the medical certificate issued by
      then Professor & HoD of Psychiatric Department, SCB, Medical
      College and Hospital, Cuttack. But the certifying Doctor does
      not categorically mention that the respondent was under his
      treatment since 1991. Most unusually, the certificate reflects that
B
      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. [Para 16][762 E-H]
             3. In granting relief to the respondent, the High Court
C     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,
D     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
E     disciplinary proceeding which led to the issuance of the discharge
      order against the delinquent on 30.12.1993. [Para 17][763 A-C]
            4. 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
F     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
G     invoked the self serving medical certificate. The doctrine of
      proportionality is not attracted in the present facts. [Para 20][764
      A-C]
           5. Under Rule 72 of the Orissa Code which deals with leave
      for Government servant remaining absent for over five years.
H
 STATE OF ODISHA & ORS. v. GANESH CHANDRA SAHOO                           757


Under Rule 72, no leave of any kind is admissible for period              A
exceeding five years unless the Government determines the case
to be one of exceptional circumstances. The situation in the
present case 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. [Paras
                                                                          B
21][764-D-H]
      6. Therefore, 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               C
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 to the respondent. [Para 22][765-A-B]
      Rajinder Kumar v. State of Haryana & Another AIR                    D
      2015 SC 3780 : [2015] 9 SCR 429 – distinguished.
                       Case Law Reference
[2015] 9 SCR 429                 distinguished              Para 12
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9514                 E
of 2019.
      From the Judgment and Order dated 02.05.2018 of the High Court
of Orissa, Cuttack in Writ Petition (Civil) No. 7053 of 2011.
      Ms. Anindita Pujari, Om Narayan, Adv. for the Appellants.
                                                                          F
     Manoj K. Das, Nikilesh Ramachandra, S.K. Singh, Advs. for the
Respondent.
      The Judgment of the Court was delivered by:
      HRISHIKESH ROY, J.
                                                                          G
      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

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758                  SUPREME COURT REPORTS                      [2020] 4 S.C.R.


A     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 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
B     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
C     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
D     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.
E
             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
F     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
G     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.
H     1
          Tribunal
  STATE OF ODISHA & ORS. v. GANESH CHANDRA SAHOO                               759
                [HRISHIKESH ROY, J.]

        4. Four years after the discharge order (30.12.1993), the respondent   A
addressed an appeal to the appellant no.2 herein and although the appeal
was time barred, the Authority considered the 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
                                                                               B
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          C
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          D
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.                 E
             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 the period under treatment
      he was incapable of taking responsibility and was advised rest.
            Reviewing all my past and present examination finding, I           F
      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.”
                                                                               G
        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        H
760                SUPREME COURT REPORTS                       [2020] 4 S.C.R.


A     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
B     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 unsuccessfully approached the appellate
      authority about four years after the discharge order.
             8. Considering the aforenoted circumstances, the Tribunal held
C     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).
D
              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
E     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
F     not allowed to re-join the Battalion.
             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
G     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
      2
H         Orissa Service Code, 1939
    STATE OF ODISHA & ORS. v. GANESH CHANDRA SAHOO                               761
                  [HRISHIKESH ROY, J.]

examination and resumption of duty and accordingly he was subjected              A
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.
                                                                                 B
        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 brushed
aside lightly. The Court also made the off the cuff observation to the           C
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       D
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                 E
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            F
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.
      14. In order to decide on the applicability of the ratio in Rajinder       G
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
3
    AIR 2015 SC 3780                                                             H
762            SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A     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,
B
      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
C     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.
             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
D     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.
E            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
F     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
G     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 doubted the veracity of the medical
      certificate, which reported on the respondent’s purported mental
      incapacity, between 1991 and 1998.

H
  STATE OF ODISHA & ORS. v. GANESH CHANDRA SAHOO                               763
                [HRISHIKESH ROY, J.]

       17. In granting relief to the respondent in his writ petition, the      A
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
                                                                               B
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        C
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         D
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       E
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         F
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,        G
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.

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764             SUPREME COURT REPORTS                           [2020] 4 S.C.R.


A            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,
B
      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
C     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
D     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:
E           “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
F           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
G           (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.
H
  STATE OF ODISHA & ORS. v. GANESH CHANDRA SAHOO                               765
                [HRISHIKESH ROY, J.]

       22. In the above circumstances, the High Court should not have          A
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
                                                                               B
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.
      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.                                                              C


Kalpana K. Tripathy                                          Appeal allowed.


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