- (1.) BY this writ petition, the petitioner has prayed that the impugned order of removal dated 16. 7. 2003 (Annexure-4) and order dated 8. 10. 2003 (Annex. 5) passed by the appellate authority whereby the appeal has been dismissed, be quashed and set aside, with a further direction that the petitioner may be exonerated of all charges and reinstated in service with all consequential benefits as if the impugned orders have not been passed.
(2.) THE facts, in brief of the case, as per the petitioner, are that the petitioner was initially appointed on 9. 9. 1982 as Constable and posted at Police Line, Jaipur City where he worked up to 16. 7. 2003. On 9. 7. 2002, charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short `the CCA Rules') as amended in 1983, was served upon the petitioner by the Supdt. of Police, Jaipur City. By the aforesaid charge-sheet, two charges (i) of willful absence of 168 days and (ii) not intimating the department during the aforesaid absence period which is gross negligence, indiscipline and dereliction in duties were levelled. The petitioner denied the charges and hence, departmental enquiry was conducted against the petitioner. In support of the aforesaid charges, the department produced four witnesses and exhibited six documents which have been marked as PW-1 to 4 and Ex. 1 to 6 respectively. Out of the aforesaid documentary evidence Ex. 4 is the joining report of the petitioner dated 22. 5. 2002 along with 29 illness certificates and one fitness certificate with receipts of all intimation sent to the department were produced. The petitioner submitted his defence that he was ill and submitted medical certificates therefore, both the charges are not established. Enquiry Officer after considering the aforesaid documents gave report that both the aforesaid charges are established. On receipt of the enquiry report, an opportunity of submitting objection was given by he department which was availed of by the petitioner by submitting detailed representation wherein he has made it clear that documents marked Ex. 4 containing illness certificates and fitness certificate were produced by the department, which categorically revealed that the department has accepted the same and further the petitioner was not disputing the same therefore, the Enquiry Officer has seriously erred in not relying on the same. The Disciplinary Authority has also disputed illness certificates of the petitioner on two grounds by observing that i) the same have been issued by Shri Naimuddin, a private Vaidya and (ii) the same have not been certified by the Medical Board. Apart from the above, even if the petitioner was to take treatment by private doctor then he ought to have applied medical leave for treatment and got it extended from time to time from the higher authorities. But the delinquent has deliberately not given intimation and without getting the leave sanctioned remained wilfully absent. Further, the delinquent has not produced the prescription slips and medical slips along with the illness certificates. The second charge has also been found proved by the Disciplinary Authority. Past conduct of major and minor punishments inflicted upon the petitioner was also considered without any notice to him and harsh penalty of removal from service was imposed against which the petitioner filed appeal but without success. The State Government has filed reply to the writ petition and submitted that from the evidence charges have been fully established and the order of removal of the petitioner has been passed after due application of mind by the competent authority to the contents of the enquiry report and material on record. In reply it has also been disclosed by the State Government that medical certificate of illness of more than 45 days is required to be verified by Medical Board as per the Government circular dated 21. 1. 1998. Submission of the counsel for the petitioner is that his absence was not willful but was occasioned on account of illness which has not been considered by the Disciplinary Authority. As regards, medical certificates to be verified by the Medical Board, on account of the period of absence being more than 45 days, the petitioner has submitted that he has submitted the said certificate much before initiation of the enquiry i. e. 22. 5. 2002 and in case of doubt, the same could have been verified by the authority itself by constituting Medical Board which is not usually done by hospital authorities at the request of the delinquent. Further submission of the counsel for the applicant is that as there is no rule which bound as employee to take treatment only from Government doctor on the contrary he is free to get treatment from any registered medical practitioner which may be private or government in any system of treatment - Allopathy, Ayurvedic, Unani and Homeopathy. He has also submitted that for taking treatment from even private doctor of the aforesaid system one has to have faith on account of having specialization or experience in curing the ailment and earning name/fame in the same. Since the petitioner was suffering from Sciatica and got improvement and total relief of the same on account of the continued treatment of Vaidya and further asking him to get the medical certificate from the medical board is violative of Article 21 of the Constitution of India. Further submission of the petitioner is that the appellate authority has placed the burden of proving the genuineness of the medical certificates to establish his innocence which is contrary to the CCA Rules according to which it is for the department to establish the charge. The petitioner has also submitted that no notice was given before consideration of the past punishment. Therefore, the impugned orders are violative of the principles of natural justice. Lastly, it was submitted that in view of the above, the charge of willful absence has been wrongly taken as proved. It was the absence which was justified on account of illness therefore, punishment is disproportionate to the gravity of the second charge for which although he had submitted the receipts of the intimation. On the aforesaid alternative submission of disproportionality of punishment, the counsel for the petitioner has cited the judgment of the Supreme Court in Ranjit Thakur vs. Union of India and others (AIR 1987 SC 2386 ). Submission of the counsel for the State Government is that the medical certificates have rightly not been relied and therefore, charge No. 1 of willful absence is proved and as regards second charge, there is no evidence that intimation of remaining absent on account of illness was received by the clerk concerned. Therefore, the said charge is also proved. The Disciplinary Authority as well as the Appellate Authority rightly held that the charges are proved and further the punishment of removal in the facts and circumstances is justified.
(3.) I have gone through the record of the writ petition and considered rival submissions of the counsel for the parties. Before proceeding further, the gist of the two charts served by charge-sheet dated 9. 7. 2002 is as follows: *** Para 4 of the circular dated 21. 1. 1998 issued by the Medical and Health Department, Govt. of Rajasthan reads as follows: Order dated 21. 1. 1998 ;