Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Date of decision: 4 November, 2020
+ W.P. (C) 8637/2020, C.M. Appl. No.27816/2020 (for exemption)
MANISH TYAGI .....Petitioner
Through: Mr. Manoj Kumar Gupta,
Advocate
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Monika Arora, Mr. Gaurav
Gaur, Advocates for respondents
No. 1, 2 and 3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
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RAJIV SAHAI ENDLAW, J.
C.M. Appln. No.27816/2020 (for exemption from filing certified
copy, dim copy, typed and legible copies of the annexures)
1. Allowed, subject to just exceptions and as per extant rules.
2. The application is disposed of.
W.P. (C) 8637/2020
3. The petition which has come up today for the first time
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impugns the order dated 20 December, 2010 of the respondents
Sashastra Seema Bal (SSB), accepting the resignation of the
W.P. (C) 8637/2020 Page 1 of 7
petitioner and seeks mandamus to the respondents SSB to reinstate
the petitioner in service with all consequential benefits.
4. The petitioner, shortly prior to filing of this petition, has also
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on 10 July, 2020 applied to the respondents SSB for reinstatement
and which application was rejected on account of delay vide order
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dated 14 October, 2020. Challenge in the petition is made to the
said order also.
5. The counsel for the respondents SSB appears on advance
notice and having not found any prima facie merit in the petition
on doing so the same, we have heard counsel for the petitioner at
length on admission.
6. It is the case of the petitioner (i) that the petitioner was
enrolled as Constable (General Duty) with the respondents SSB on
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15 October, 2005; (ii) in October, 2009, the petitioner was posted
at Pithoragarh in Uttarakhand where he was detailed to handle
mules; (iii) that the petitioner found himself allergic to smell of the
mules and the same affected his health; (iv) the petitioner was also
sent for horse familiarization training and where also he continued
to be allergic to the smell of horses; (v) that in July, 2009 and
September, 2009 the petitioner was compelled to resign but
resisted the said efforts; (vi) in July, 2010 the petitioner again felt
dressiness for the same reason and was sent on casual leave from
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22 July, 2010 to 8 August, 2010; (vii) the petitioner, on account
of his illness was unable to resume duty and in September, 2010,
W.P. (C) 8637/2020 Page 2 of 7
the respondents SSB sent Civil Police to apprehend the petitioner
which found the petitioner to be bed ridden; (viii) the respondents
SSB constituted a Court of Enquiry and which Court of Enquiry on
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15 September, 2010 declared the petitioner a ‘deserter’; (ix)
however the petitioner applied to rejoin and was permitted to rejoin
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but was again detailed for mule duty; (x) the petitioner on 6
December, 2010 under compulsion resigned and which resignation
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was accepted on 20 December, 2010; (xi) till the year 2014, the
petitioner was under treatment for the allergy developed by him
because of his being detailed to handle mules; (xii) the petitioner in
the year 2005 made queries under the Right to Information Act,
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2015 but continued to remain depressed; (xiii) the petitioner on 21
November, 2017 approached the Central Information Commission
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(CIC); (xiv) the petitioner on 10 July, 2020 applied to the
respondents SSB for reinstatement and which application has been
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rejected vide impugned order dated 14 October, 2020 only for the
reason of delay; and, (xv) the petition is not accompanied with a
single document of the illness/depression claimed by the petitioner.
7. The counsel for the petitioner, on enquiry, states that the
medical certificate has been obtained after the filing of the petition
and he be granted liberty to file the same.
8. A medical certificate obtained now after the filing of the
petition belies the pleading of the petitioner having been under
treatment for allergy from the year 2010 to the year 2014 or having
been under depression from the year 2015 onwards.
W.P. (C) 8637/2020 Page 3 of 7
9. To satisfy our conscious, we have enquired from the counsel
for the petitioner, whether he has any document of medical
treatment between 2010 and 2020.
10. The counsel for the petitioner from his file has handed over
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photocopies of medical certificates dated 6 August, 2010, 6
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September, 2010 and 30 October, 2010 of a private doctor at
Meerut certifying that the petitioner was suffering from some
disease which we are unable to decipher and he being unable to
join duties for 10 days, 1 month and for 8 weeks respectively.
11. Such medical certificates are normally issued and obtained
for applying or justifying leave and do not show a course of
treatment as is claimed to have been taken. Moreover, the disease
from which the petitioner was suffering was stated to be justifying
absence for short duration only and not for a period of 10 days.
None of the documents handed over show the petitioner to be
suffering from mental ailment and depression to the extent coming
in the way of the petitioner being unable to approach the court for
10 years.
12. It is thus quite obvious that the petitioner intentionally did
not file the said documents in the court knowing that the same do
not support the case of the petitioner.
13. The counsel for the petitioner has then contended that though
there are separate mule handlers in the SSB but the petitioner was
illegally assigned the said duty.
W.P. (C) 8637/2020 Page 4 of 7
14. Even if it was so, the petitioner ought to have complained
thereagainst and sought his remedies at that time and cannot make
the same a ground now.
15. The counsel for the petitioner has next drawn our attention to
Rule 8(a) of the Sashastra Seema Bal Act, 2007 quoted in the
petition itself to contend that the said Act does not permit
resignation.
16. The same is again a misreading of the provision all it says is
that the same can be done only with the previous permission in
writing and perusal of the documents filed by the petitioner himself
shows (i) the court of enquiry, who have found that the petitioner
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after the leave taken by him on 8 August, 2010 ended did not
report for duty; (ii) that rejoining notices were sought of his home
address but he did not respond to notices; (iii) that his absent
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period was from 8 August, 2010 to 25 September, 2020; (iv) that
he has taken leave for domestic problem; (v) that he has sent
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rejoining notice dated 13 September, 2010; (vi) when attempts
were made to contact him, his phone was switched off; (vii) that he
had illegally absented without any intimation and should be
punished; (viii) the Court of Enquiry on the said findings declared
the petitioner as ‘deserter’; (ix) that the petitioner resumed duty on
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19 November, 2010 after over staying 100 days w.e.f. 9 August,
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2010 to 19 November, 2010; (x) the petitioner served a letter
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dated 6 December, 2010 of resignation for domestic reason; (xi)
the said letter of resignation was put up through concerned dealing
W.P. (C) 8637/2020 Page 5 of 7
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and on 7 December, 2010 his resignation was accepted by the
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Commandant on 8 December, 2010; (xii) an order of acceptance
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of resignation w.e.f. 20 December, 2010 was issued; (xiii) a
Memo was served on the petitioner to deposit Rs.55,218/- towards
recovery of 3 months pay and allowances; (xiv) thereafter the name
of the petitioner was stuck off after necessary clearance vide Office
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Order ending 20 December, 2010; and, (xv) the resignation letter
of the petitioner is written in hand and also states domestic
problems for the resignation.
17. The counsel for the petitioner has also referred to the steps
being taken by the petitioner under the RTI Act to explain the
delay.
18. We have however enquired from the counsel for the
petitioner whether not the petitioner knew that he had resigned.
The answer is in affirmative.
19. Once it was so, we do not see any reason for the petitioner to
invoke the RTI Act for just like the petitioner has now filed this
petition without obtaining any documents under the RTI Act, so
could have filed earlier.
20. There is no merit in the petition. The petitioner has not
explained the long delay of over 10 years in approaching the court
or in applying the reinstatement and in fact the documents shown
in the court are contrary to the pleadings of the petitioner and
falsify the pleadings of the petitioner.
W.P. (C) 8637/2020 Page 6 of 7
21. Dismissed.
RAJIV SAHAI ENDLAW
(JUDGE)
ASHA MENON
(JUDGE)
NOVEMBER 04, 2020
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