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Judgment
Heard the parties.
The present writ petition has been filed for quashing the force order dated 19.05.2011, issued by the Commandant as contained in Office Memo dated 25.06.2013, whereby the period of medical treatment of 175 days has been treated in extraordinary leave, and the amount for the period in question has been ordered to be deducted from the salary of the petitioner and also for commanding the respondents to adjust the period in question in medical leave and other leave admissible to the petitioner.
BRIEF FACTS
The brief facts, which gave rise to the present writ petition are that the petitioner was appointed as a Constable/Sepoy in the Indo-Tibetan Border Police (ITBP) and was posted in 31st Battalion of the ITBP, Village- Tigdo Pampum, Itanagar, Arunachal Pradesh. While the petitioner was posted in 31st Battalion, on account of his illness, he applied for leave on medical ground, before the Commandant 31st Battalion, ITBP. After due consideration of his application, the competent authority granted permission to the petitioner for medical treatment and granted leave and further sent him at Sector Head Office, Itanagar for treatment. Pursuant thereto, the petitioner went to the Sector Head Quarter/Head Office at Itanagar and from where he was sent for treatment at Composite Hospital, Guwahati, CRPF, where he was admitted and remained under treatment from September 2011 to July 2012. After being declared fit, he was relieved/released from hospital and immediately thereafter, reported for his duties.
It is the case of the petitioner that despite being granted medical leave for his treatment, the period under treatment was shown to be absent from service and vide order dated 19.05.2011, the salary for the said period has been directed to be deducted from the salary of the petitioner. The petitioner after his joining was transferred from 31st Battalion to the 5th Battalion at Leh (Ladakh) where the deduction from his salary started. The petitioner submitted a representation on 05.03.2013, before the Additional Director General, ITBP with a request that keeping in view his medical leave, which was duly sanctioned by the competent authority, the deductions for the period under treatment, may not be made from his salary. Before order of recovery, no opportunity was given to the petitioner to defend himself and virtually, the impugned order of deduction was passed without due consideration of the representation filed by the petitioner.
It is further case of the petitioner that the petitioner was under medical treatment at Itanagar and he was operated at Composite Hospital, CRPF, Guwahati on 07.11.2011 and thereafter, he was referred to the Arunachal State Hospital on 27.04.2012 and after remaining in continuous treatment, he was declared fit. Later on, the petitioner was discharged from Composite Hospital on 02.05.2012 and a certificate to that effect was given by the DIG, Medical Superintendent, Composite Hospital, ITBP and the Medical Officer, Composite Hospital, ITBP.
It is the case of the petitioner that despite being given the treatment in a Government Hospital, after due permission from the competent authority, the period spent on medical treatment, has been treated to be period under absence from duty. Subsequently, a review petition was filed by the petitioner and vide office Memo dated 25.06.2013, issued under the signature of the Senani, 31st Battalion, ITBP, it was directed/ordered that the period w.e.f. 17.10.2010 to 31.10.2011 i.e. 270 days has been treated as Extraordinary Leave and on such recommendation, the file was placed before the higher authorities for regularisation of the leave. Total 175 days period was regularised as Extraordinary Leave and the petitioner was punished for 28 days of custody for taking leave without permission from the competent authority.
SUBMISSION ON BEHALF OF THE PETITIONER
The learned counsel for the petitioner submits that the petitioner underwent a Surgery for right Hydrocele on 16.06.2010 and due to incomplete resolution of the disease, he subsequently developed recurrent pain and swelling at the operated place. He was diagnosed with a serious medical condition called ‘bilateral recurrent inguinal lipoma (Hernia)’. The petitioner was initially referred to Composite Hospital at Itanagar on 01.09.2010, from where he was referred to Composite Hospital, CRPF, Guwahati on 03.09.2010 for further treatment. The petitioner was discharged from Composite Hospital at Guwahati on 07.07.2011. He submits that the petitioner took leave for 315 days, however the same was regularised by Order No. 3096 dated 10.04.2012, issued by the Commandant, 31st Battalion, ITBP whereby the period from 02.09.2010 to 16.10.2010 i.e. 45 days was adjusted under commuted leave. Similarly, the period from 17.10.2010 to 19.01.2011 i.e. 95 days was treated as Earned Leave and the period from 20.01.2011 to 13.07.2011 i.e. 175 days was treated as Extraordinary Leave. The petitioner is aggrieved by the order dated 10.04.2012 to the extent that the period from 20.01.2011 to 13.07.2011 has been treated as Extraordinary Leave, which resulted in recovery from the pay and allowances of the petitioner. He submits that despite the fact that the petitioner was on medical leave, duly sanctioned by the competent authority, he has been punished for no fault on his part and inspite of the documents, which suggest and prove that the petitioner was under treatment and the same has been granted by Medical Board/Medical Officers, the petitioner has been awarded punishment of recovery.
The learned counsel for the petitioner submits that so far the allegation of the authorities with regard to not informing the department and remaining absent for 315 days is concerned, the petitioner undergone a Hydrocele operation on 16.06.2010 and owing to the incomplete resolution of the disease, the petitioner subsequently developed recurrent pain and swelling at the operative site and was diagnosed with Hernia. The petitioner remained under treatment from 18.12.2010 to 07.07.2011 under different period. He further submits that from perusal of the medical certificates issued by the treating doctor and the Medical Board, it would transpire that the petitioner’s absence from duty was neither unauthorised nor without the knowledge of the respondent authorities. Each certificate was issued by the competent Medical Officer of the respondent’s own hospital and was duly approved by the competent authority, who certified that the petitioner’s absence from duty was absolutely necessary for restoration of his health. He submits that from the Medical Certificate for extension or communication of leave issued by the Medical Officer of the Composite Officer, CRPF, Guwahati and approved by the Medical Authority of the respondents it consequently established that the petitioner’s medical condition, treatment, hospitalization, OPD consultation and medically advised rest were duly communicated to the respondents, therefore the allegation that the petitioner remained absent without informing the department is not to be accepted. Further, an attendant, who was also allowed to remain with the petitioner has been given the benefit of leave for the period, but the same has been denied to the petitioner.
The learned counsel for the petitioner further submits that so far the contention of the respondents that the petitioner never applied for any kind of leave or any kind of leave was granted to him by the respondents for his medical treatment, it is submitted that even assuming that the petitioner did not submit a formal leave application after his discharge from Composite Hospital at Itanagar at 03.09.2010, such omission by itself would not automatically amount to misconduct. He submits that it has to be taken into consideration that whether the petitioner’s absence from duty was willful, so as to constitute misconduct under the applicable service rules. To support his contention the learned counsel for the petitioner refers to and relies upon a judgment of the Hon’ble Supreme Court of India in a case reported in 2012 (3) SCC 178 (Krushnakant B. Parmar versus Union of India & Anr), wherein in paragraph nos. 17 to 19, it has been held as follows:-
“17.If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18.In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19.In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.”
The learned counsel for the petitioner by referring to the above referred judgment submits that the ratio laid down by the Hon’ble Supreme Court of India in the case of Krushnakant B. Parmar (supra) is squarely applicable in the case of the petitioner, since the petitioner was suffering form Hernia and remained under continuous medical treatment from 01.09.2010 to 07.07.2011 and this fact is established by the reports of the Medical Board. His absence from duty was occasioned by compelling medical circumstances, entirely beyond his control, therefore his absence cannot be said to be willful, even if the petitioner did not submit a formal leave application. He submits that as per Rule 25 of the Central Civil Services (Leave) Rules, 1972, it would transpire that unless the competent authority to grant leave extends the leave, a Government servant, who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave, to the extent such leave is due, the period in excess of such leave due being treated as extraordinary leave and the willful absence from duty after the expiry of leave, renders a Government servant liable to disciplinary action. He submits that the Government of India decisions also exists that a Government servant, who remains absent without any authority, should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed under Rule 31(2) of C.C.S. (Leave) Rules, 1972. He submits that before taking any such decision, the Government of India by its office Memorandum dated 22.06.2010 has categorically directed that whenever a Government servant remains absent without authority, the department shall immediately inform the employee of the consequences of unauthorised absence, direct him to rejoin duty immediately/within a specified date and failing which, he would be liable for disciplinary action under CCS (CCA) Rules, 1965.
The learned counsel for the petitioner by referring to the above submissions, submits that statutory framework leaves no discretion with the Department to remain silent, where an employee is genuinely absconding or absent without authority. He submits that in terms of Rule 25 of the CCS (Leaves) Rules, 1972 and Government of India office Memorandum dated 26.06.2010, it was incumbent upon the respondent authorities to initiate proceeding against the petitioner, however no notice was issued to the petitioner and the same was complete inaction on the part of the respondents. He submits that the respondents cannot now be permitted to approbate and reprobate by simultaneously alleging unauthorised absence, while there own conduct throughout the relevant period demonstrates that they treated the petitioner’s absence as one arising from medical condition, therefore the respondent’s case that the petitioner remained absent without intimation and obtaining any leave, is not fit to be considered.
The learned counsel for the petitioner further submits that so far the allegation to the effect that in the total period of 315 days, he was discharged from hospital during the intervening period and he frequently visited his hometown at Munger from Composite Hospital, Guwahati without informing the department is concerned, the distance between Munger and Guwahati is almost 771 kilometers and even by train and road journey it will take approximately 16 hours to travel from Guwahati to Munger and the only period, during which the respondents have not indicated about the petitioner’s status, during course of treatment, is one day on 04.03.2011 and then 2 days from 28.06.2011 to 29.06.2011. It is not possible for the petitioner to visit his hometown during this period. He further submits that the petitioner was hospitalised and was advised rest from 02.09.2010 to 07.07.2011 and after his discharge on 07.07.2011, he did not report to his unit till 14.07.2011. The respondents treated the said period from 08.07.2011 to 13.07.2011 as unauthorised absence and for the said period, the punishment of force custody for 28 days was handed over to the petitioner and the same was accepted by the petitioner and he duly underwent the said period under force custody. He submits that the respondents failed to take into consideration the Rule 22(1)(ii)(a) of the CCS (Leave) Rules, 1972.
The learned counsel for the petitioner further submits that so far the condition of the petitioner under medical treatment i.e. Bilateral Recurrent Inguinal Lipoma (Hernia) is concerned, the petitioner initially underwent surgery for right side hydrocele on 16.06.2010. The surgery failed to achieve the complete resolution and thereafter, he repeatedly developed pain, swelling and recurrence of the lesion at the operated site, which resulted in diagnosis of Hernia. The same is supported by the continuous treatment and certificate given by the doctors/medical board. He submits that in terms of Section 2(s) of the Rights of Persons with Disabilities Act, 2016 which defines that ‘a person with disability’ as “one having a long term physical impairment, which, in interaction with barriers, hinders full and effective participation in society on an equal basis with others.” He submits that the case of the petitioner satisfies the essential ingredients of Section 2(s) of the Rights of Persons with Disabilities Act, 2016 inasmuch as that the disease continued for a prolonged period despite surgery on 16.06.2010. It repeatedly recurred after treatment, causing continuous hospitalisation for 309 days from 02.09.2010 to 07.07.2011. It caused persistent pain and swelling and restricted mobility during fast movement and prolonged standing as well as it materially interfered with the performance of the strenuous duties, expected from a member of the armed force. He submits that from the reports of the Medical Board dated 26.11.2011 and 30.04.2011, it would appear that the disability was contracted during service and although not strictly attributable to service, it may be aggravated due to stress and strain of service condition, therefore these findings constitute an official medical acknowledgment that the petitioner’s disability was aggravated by the rigorous nature of his duties. He submits that schedule (I) of Rights of Persons with Disabilities Act, 2016 recognises several long term physical disabilities, including muscular disorders such as muscular dystrophy. He submits that the condition of the petitioner is associated with recognised muscular disabilities and although the nomenclature may differ, the disabling consequences of the petitioner’s condition deserve similar consideration for determining the nature and gravity of his disability.
The learned counsel for the petitioner to support his above contention refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in (2015) 12 SCC 264 (Union of India versus Rajbir Singh), wherein in paragraph no.16, the Hon’ble Supreme Court of India has held as follows:-
“16.Applying the above parameters to the cases at hand, we are of the view that each one of the respondents having been discharged from service on account of medical disease/disability, the disability must be presumed to have been arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to have been attributable to or aggravated by military service. There is admittedly neither any note in the service records of the respondents at the time of their entry into service nor have any reasons been recorded by the Medical Board to suggest that the disease which the member concerned was found to be suffering from could not have been detected at the time of his entry into service. The initial presumption that the respondents were all physically fit and free from any disease and in sound physical and mental condition at the time of their entry into service thus remains unrebutted. Since the disability has in each case been assessed at more than 20%, their claim to disability pension could not have been repudiated by the appellants.”
The learned counsel for the petitioner by referring to the judgment of Rajbir Singh (supra) submits that considering the chronic, recurrent, aggravating and disabling nature of the petitioner’s disease, together with the findings of the Medical Board, the condition deserves to be treated as a special disease, having long term disabling consequences, warranting the grant of all consequential service benefits.
The learned counsel for the petitioner submits that the petitioner is entitled to Special Disability Leave under the All India Services (Special Disability Leave) Regulations, 1957 read with Rule 44 of the Central Civil Services (Leave) Rules, 1972. He submits that Rule 3 of the All India Services (Special Disability Leave) Regulations, 1957 as well as Rule 44 of the Central Civil Services (Leave) Rules 1972 is applicable in the case of the petitioner, since the same is to be granted to a member of the service, who suffers disability as a result of risk of office. The risk of office means any risk or disease to which a member of the service is exposed in the course of and as a consequences of his duties, but nothing shall be deemed to be risk of office, which is a risk common to human existence in modern conditions in India, unless such risk is definitely enhanced in kind or degree by the nature, conditions, obligations or incidents of Government services and includes any risk of injury, illness, disease or accident. He submits that the disease caused to the petitioner was not a risk common to human existence in modern conditions in India, which would have commonly happened, but due to incomplete resolution of the disease, for which he was operated on 16.06.2010 and gradually recurred on 01.09.2010. The risk of illness/disease definitely enhanced in degree by recurring on 01.09.2010 due to the nature, conditions, obligations or incidents of service, thereby satisfying the ingredients of Rule 3(1) (i) and risk of office. He further submits that in terms of Rule 44 of the Central Civil Services (Leave) Rules, 1972, the petitioner was authorised for such leave, since he was disabled by injury caused in consequences in due performance of his official duties and the same could have been granted to him by the competent authority. In terms of Rule 44(2), the petitioner’s disability manifested itself within three months of the occurrence, to which it attributed and he acted with due promptitude in bringing it to notice of the department and he was immediately sent to Composite Hospital at Itanagar on 01.09.2010 for treatment. He further submits that in terms of Rule 44(7) read with Rule 44(4) of the Central Civil Services (Leave) Rules, 1972, the petitioner was entitled for additional leaves under Special Disability Leave, which was not granted in case of the petitioner, while he was in hospital for treatment, since for the first 120 days, equal for leave salary while on earned leave and for remaining period of any such leave, be equal to leave salary during half pay leave, he was entitled.
The learned counsel for the petitioner to support his above contention refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in AIR (2025) SC 2804 (Rajumon T.M. versus Union of India), wherein in paragraph no.30 it has been held as follows:-
“30.We must appreciate the fact that the provisions for grant of disability pension are in the nature of a beneficial scheme intended to provide succour to servicemen in hard times who have been discharged from service after having served the nation with dedication. Accordingly, a liberal approach must be adopted while construing such beneficial provisions. This approach has also been underscored by this Court in Maniben Maganbhai Bhariya v. Distt. Development Officer, Dahod, (2022) 16 SCC 343, albeit, in the context of the Payment of Gratuity Act, 1972 as applicable to Anganwadi workers, the principles of which, in our opinion, are equally applicable in the present case dealing with disability pension. In the said case it was observed as follows:
“55.When social security legislations are being interpreted, it always has to be interpreted liberally with a beneficial interpretation and has to be given the widest possible meaning which the language permits, known as beneficial interpretation. When a statute is meant for the benefit of a particular class and if a word in the statute is capable of two meanings i.e. one which would preserve the benefits and one which would not, then the former is to be adopted.”
The learned counsel for the petitioner further refers to and relies upon a recent judgment of the Hon’ble Punjab and Haryana High Court passed in C.W.P. No. 6352 of 2021 (Vijender Singh versus Union of India & Ors.), which has been decided on 24.03.2026, wherein in paragraph no.5, it has been held as follows:-
“5.Learned counsel for the petitioner contends that the impugned order dated 08.05.2018 is legally unsustainable, being arbitrary and non-speaking, as it fails to assign any cogent reasons for denying disability benefits despite the admitted factual matrix. It is argued that the petitioner suffered a brain stroke while on active duty in a highly stressful and hostile operational area at Baramulla, and therefore, the disability must be presumed to be attributable to or at least aggravated by service conditions. Emphasis is laid on the settled principle that where a member of a disciplined force suffers a disability during the course of service, a liberal and beneficial interpretation must be adopted in favour of the employee.”
The learned counsel for the petitioner further submits that in terms of paragraph no.7 of the judgment of the Hon’ble Supreme Court of India in a case reported in (2015) 4 SCC 334 (State of Punjab versus Rafiq Masih) (White Washer), no recovery could have been made from the salary of the petitioner.
SUBMISSION ON BEHALF OF THE RESPONDENTS
Per contra, the learned counsel for the Union of India, while referring to the counter affidavit filed by the Commandant, 31st Battalion, ITBP submits that the petitioner was referred for treatment by the Sector Headquarter, Itanagar to Composite Hospital, CRPF, Guwahati on 02.09.2010. He remained under treatment at Composite Hospital, CRPF at Guwahati w.e.f. 07.09.2010 to 07.07.2011, which includes OPD period w.e.f. 07.09.2010 to 21.11.2010 i.e. 76 days, w.e.f. 17.12.2010 to 04.01.2011 i.e. 19 days, 05.03.2011 to 16.05.2011 i.e. 73 days and 30.06.2011 to 07.07.2011 i.e. 8 days. He was admitted in ward w.e.f. 22.11.2010 to 09.12.2010 i.e. 18 days, 05.01.2011 to 27.01.2011 i.e. 23 days and medical rest w.e.f. 10.12.2010 to 16.12.2010 i.e. 7 days, 28.01.2011 to 03.03.2011 i.e. 35 days and w.e.f. 17.05.2011 to 27.06.2011 i.e. 42 days. The petitioner reported for duties on 14.07.2011. He submits that the petitioner continuously remained absent for 317 days, however he did not bothered to inform the department. The petitioner being a responsible member of disciplined force was under obligation to communicate the relevant facts from time to time to his office, however the petitioner did not bother to take up the responsibility to inform the higher authorities. The petitioner was given departure from Composite Hospital at Guwahati on 07.04.2011 for Sector Headquarter at Itanagar after treatment and he reached there on 14.07.2011 i.e. after 6 days. He was not traceable during the said period and no satisfactory reply was given by him. In view of the ailment of the petitioner, a lenient and sympathetic view has been taken as far as possible in terms of existing Rules. His treatment period w.e.f. 02.09.2010 to 16.10.2010 (45 days) was regularised as commuted leave, which was adjusted against 90 days of half pay leave. Apart from the above, since the petitioner was left with only 95 days of Earned Leave (EL) in his leave account, the remaining treatment period from 17.10.2010 to 19.01.2011 was regularised towards EL. After adjustment/regularisation of the said period, no leave was due to the credit of the petitioner and left with no other option, the period from 20.01.2011 to 13.07.2011 i.e. 175 days has been regularised as extraordinary leave in terms of the Rules. The petitioner has further been awarded 28 days of force custody for wilfully remaining absent from 08.07.2011 to 14.07.2011.
The learned counsel for the Union of India further submits that the petitioner neither applied for any kind of leave nor any kind of leave was granted to him for medical treatment by the department. He was referred to SHQ (Itanagar), ITBP for treatment and he remained under treatment from 07.09.2010 to 07.07.2011. Since no leave was available to his credit, as per the Government Servant’s Leave Regulation, his 175 days out of the total 317 days medical treatment period, which was his absence from duty, was regularised towards Extraordinary Leave, which requires deduction of pay and allowances as per Rules.
The learned counsel for the Union of India further submits that there is no irregularity in adjusting 175 days of absence of the petitioner in Extraordinary leave, in terms of the Government orders and circulars and in terms of Rule governing the leave conditions of Government servant, and therefore the action of the respondent authorities is in accordance with law. He submits that the petitioner deliberately and intentionally remained absent from duty without informing the authorities concerned and the authorities have taken a lenient and sympathetic view in adjusting the leave of the petitioner towards Extraordinary leave, for which he is not entitled for payment of any salary and rightly so, Rs. 8924/- has been directed to be recovered from salary of the petitioner per month.
CONSIDERATION
Having heard the rival submission and after going through the records, it appears that the impugned order having been passed on 10.4.2012, regularizing the period of absence under the Leave Rules was not and cannot be treated as punishment order. Rights of Persons with Disabilities Act, 2016 thus was neither attracted nor applicable in the case of the petitioner. As such any reliance thereupon and any judgment based thereupon is not relevant in the present case. If at all his case may/can be governed by the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
The Heading of Section 47 of the PWD Act, 1995 is related to Non discrimination in Government Employment, which is not the case in the present writ petition.
Section 47 proviso however provides as follows:-
“Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”
The Ministry of Social Justice and Empowerment, in exercise of powers conferred under Section 47 of the PWD Act issued a notification on 10th September 2002 exempting all categories of ‘Combatant Personnel’ of the C.R.P.F. from the Provisions of the Section. The notification reads as follows:
“NOTIFICATION”
New Delhi, the 10th September, 2002
S.O.995 (1)- In exercise of the powers conferred by proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act 1995 (I of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of ‘combatant personnel’ only of the Central Para Military Forces (CPMFs) namely Central Reserve Police Force (CRPF), Border Security Force (BSF), Indo Tibetan Border Police (ITBP), Central Industrial Security Force (CISF) and Assam Rifles from the provisions of the said Section.”
I.T.B.P. is thus as per aforesaid notification is exempted from the application of the provisions of the PWD Act, 1995. Even otherwise, the petitioner does not claim to have any disability as defined in Section 2 (i) of the PWD Act 1995 or under Section 2 (t), which provides that "person with disability" means a person suffering from not less than forty percent of any disability as certified by a medical authority. The petitioner thus does not come within the category of disabled, even in accordance with the PWD Act 1995
An employee must have an official certification of disability to claim statutory benefits, requiring a formal medical evaluation. An employee is entitled to protections and reservations under the law only from the date, they produce a valid disability certificate, issued by an authorised medical Board. Such pleadings too are not there in the present proceedings and the matter which relates to adjustment and regularization of absence in accordance with the Leave Rules, does not require any interference inasmuch as the same cannot be termed as an order of punishment. So far, the claim of Special Disability Leave is concerned, in the facts and the provisions enumerated above, the petitioner is not entitled to any such leave, in absence of demand to that effect and pleadings, justifying such relief.
In view of the consideration made above, this Court does not find any merit in the present writ petition and the same is dismissed accordingly.
Pending applications, if any, also stands disposed of.