HRISHIKESH ROY,J. - (1.) The State of Odisha, the Director General and 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 Tribunal [Tribunal] 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.
(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.;