Central Administrative Tribunal - Delhi
Jagvir Singh vs Comm. Of Police on 9 September, 2022
1 OA No.4082/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 4082/2015
Order reserved on: 01.09.2022
Order pronounced on: 09.09.2022
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Sh. Jagvir Singh (No.617/NW),
S/o Sh. Sultan Singh,
R/o Village & P.O. Jasrana,
P.S. Gohana, Distt. Sonipat,
Haryana.
....Applicant
(By Advocate: Mr. Anil Singhal)
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Lt. Governor of Delhi,
5, Shyam Nath Marg,
Delhi.
3. Commissioner of Police,
Police Headquarters,
I.P.Estate, New Delhi.
4. The Joint Commissioner of Police,
Northern Range, Delhi.
5. Dy. Commissioner of Police,
North West District,
Ashok Vihar, Delhi.
... Respondents
(By Advocate: Mr. Amit Yadav)
2 OA No.4082/2015
ORDER
By Hon'ble Manish Garg, Member (J) This is the third round of litigation.
2. Earlier applicant filed OA No.2227/2005 which was decided by the Tribunal vide order dated 06.10.2005 directing the respondent No.4 to decide the pending appeal of the applicant. The said respondent decided the appeal of the applicant vide order dated 15.12.2005. Thereafter, applicant filed another OA No.518/2006 seeking to set aside the order of suspension and consequent reinstatement. The said OA was allowed by the Tribunal vide order dated 29.09.2006. The respondents challenged the order of the Tribunal dated 29.09.2006 before the Hon'ble High Court of Delhi in writ petition No.5479/2007. The Hon'ble High Court of Delhi in writ petition noticed that, the applicant was working as a Constable in Delhi Police. He served for 19 years, however, pursuant to a departmental enquiry held on 08.12.2013 he was removed from service. The order of punishment of removal from service was passed on the ground that he remained unauthorizedly absent for 387 days and his acts of absence from service were on account of gross deliberate, negligence and misconduct unbecoming of a Police Officer. The proceedings were conducted ex parte, which culminated 3 OA No.4082/2015 into finding of guilt by the enquiry officer, who led to passing of an order of penalty of removal from service, which order was also upheld by the Appellate Authority, however, the OA filed before this Tribunal was partly allowed and respondents were directed to reinstate the applicant with all consequential benefits. After considering the aforesaid contention, the Hon'ble High Court disposed of the writ petition vide order dated 30.6.2015, with the following directions:-
"5. After some hearing in the matter, it is agreed by counsel for the parties that the present writ petition may be disposed of on the followed agreed terms:
(i) The respondent will file an appeal before the appellate authority, as directed in para 15 of the judgment passed by Central Administrative Tribunal, within a period of two months from today, as prayed.
(ii) The respondent will be granted a personal hearing and a final order would be passed within four months from the date of filing of the appeal by the respondents.
(iii) The time frame shall be strictly adhered to by the parties as on account of the stay granted by the High Court the respondent has not been reinstated nor consequential benefits received.
6. Accordingly, writ petition stands disposed of in view of the above agreed terms."
3. After the remand on above agreed terms, the Appellate Authority rejected the appeal vide order dated 27.8.2015 observing as under:-
"He was also heard in the Orderly Room in person by the undersigned on 25.08.2015 wherein he reiterated the same plea as mentioned in his written appeal.
I have carefully gone through the plea taken by the appellant in his written submission as well as in his oral submission during the Orderly Room. I have further gone through the facts and circumstances of the case as per record available on the DE file. The appellant had remained absent from duty for a period of 387 Days on two 4 OA No.4082/2015 occasions itself demonstrates that the appellant was habitual absentee and was unauthorizedly absent without prior permission of the Competent Authority, which is a clear violation of CCS (Leave Rules1972 and, SO No. 111 of Delhi Police. During the above absence period, five Absentee Notices were issued to the appellant with the direction to resume his duty at once otherwise strict disciplinary action will be taken against him but he did not bother to do so. The Departmental Enquiry was conducted against the appellant ex-parte as he had never attended the DE proceedings despite being given several opportunities.
Even he did not submit his defence statement as well as written reply against the findings of the Enquiry Officer. His further plea that he was absent from duty due to mental agony because of the death of his father is also not acceptable, if the appellant was actually facing some domestic problems, even then he was duty bound to inform the department about his grievance/problem, but he failed to do so. Being a member of disciplined police force, he should have adhered to proper procedures and applied for leave instead of absenting himself. His sister- in-law had expired after awarding the punishment of Removal from Service so his plea is totally baseless and without any force or substance. The plea taken by the appellant is nothing but a lame excuse only to gain sympathy. In a nutshell, the appellant had remained absent willfully and unauthorisedly for a long period without any intimation which is a serious misconduct especially in a disciplined force. The previous absentee records also shows that the appellant was a habitual for absenting himself from the duty.
I have examined the Departmental Enquiry proceedings conducted against the appellant and the other material available in the file. The Disciplinary Authority has clarified that the appellant had no interest to continue his service in a disciplined force and his further retention in the force will only spread indiscipline in the Department. This makes one believe that the appellant does not deserve any leniency at this stage. Such type of indiscipline, in a disciplined police force, cannot be overlooked or taken lightly. Giving relief to such an incorrigible person would send a wrong massage among other members of the force.
Keeping in view all the facts and circumstances, I have come to the conclusion that the plea taken by the appellant and his oral submission during the Orderly Room is devoid of merit. As such the punishment awarded to the appellant by the Disciplinary Authority is justified and commensurate to his default, hence requires no interference. Therefore, the appeal filed by the appellant is hereby rejected.
The appellant to be informed accordingly."5 OA No.4082/2015
4. Aggrieved, by the aforesaid appellate order, the applicant has filed the instant OA seeking the following reliefs:-
"(i) The Hon'ble Tribunal may graciously be pleased to set aside the order no. 3264-70 P.sec. NR (iii) Delhi dated 27/08/2015 passed by Sh. Sanjay Singh, Joint Commissioner of Police Northern Range Delhi and the order dated 08/12/2003 passed by disciplinary authority and direct the respondent to reinstate the applicant with all consequential relief and back wages.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper in the above mentioned facts and circumstances may also be granted to the applicant in the interest of justice."
5. The submission made before us by the learned counsel for the applicant is that the applicant has been awarded a punishment, which is disproportionate to the charge levelled against him. It is urged that the applicant has completed 19 years of service and is eligible to draw pension. The learned counsel would contend that the applicant is completely debilitated by illness and can barely move. It is further argued that the past record has not been proved against him. In view of these mitigating circumstances, his punishment should be modified to compulsory retirement. It is also submitted that applicant has three children. His wife Smt. Sudesh is totally illiterate and is a house wife, having rural background. He has large family to support and has no alternative means of subsistence, but the disciplinary authority has held to the contrary, which is totally baseless and without any force or substance. The learned counsel for the applicant relied upon 6 OA No.4082/2015 decision rendered by this Tribunal in OA No.2121/2015 decided on 23.8.2022 titled as Tarunveer Singh Vs. Govt of NCT of Delhi more specifically on para 10, seeking that Compassionate Allowance ought to have been granted by the Appellate Authority taking a lenient view. Para 10 reads as under:
"10. A careful perusal of the report submitted by the inquiry officer and the orders passed by the disciplinary and the appellate authority reveals that while it has been conclusively established that the applicant has been continuously absent from duty, none of them have held that this absence has been willful. Therefore, some reasonable benefit of doubt should go to the applicant that his absence was on account of his peculiar circumstances, i.e., his medical condition of depression which prevented him from performing his duties. We are not going into the veracity of this fact or averment but merely drawing an inference on the basis of documents of records. These documents on record have not been disputed by either of the parties. Moreover, we are of the well considered opinion that an absence from duty stated to be on account of a medical condition, though may be deserving of a major penalty, is surely not deserving of a penalty as harsh as dismissal from service. In fact, in terms of the penalties which can be imposed in a disciplinary proceedings, dismissal is the harshest of the penalties whereas absence from duty cannot be considered to be the gravest of misconducts. Moreover, while imposing this penalty, the respondents have not even passed any order with respect to the entitlement or eligibility of the applicant for grant of compassionate allowance. Accordingly, we cannot sustain the impugned orders passed by the disciplinary authority and the appellate authority. Accordingly, both the orders, i.e., order dated 02.01.2014 bearing no. 57-156/HAP (P-II)/III Bn., DAP and order dated 03.03.2015 bearing no.468-71/P.Sec./Addl.CP/AP are set aside. The matter is remanded back to the respondents to consider the matter afresh against the light of the observations made hereinabove and pass the order after re-examination of the facts and circumstances of the case ensuring that the penalty so imposed adheres to the principle of proportionality in relation to the alleged misconduct. The competent authority amongst the respondents shall give effect to these directions and pass an order afresh within a period of eight weeks from the date of this order. The applicant shall be entitled to all the consequential benefits, if they so accrue thereafter, under the relevant rules and law on the subject."7 OA No.4082/2015
6. Needless to say that the facts in case of OA No.2121/2015 decided on 23.8.2022 titled as Tarunveer Singh (supra) are entirely distinguishable inasmuch as the present case is third round of litigation. No prayer seeking compassionate allowance has been granted. The opportunity of hearing was also given to the applicant. His written response has also been considered.
7. The Respondents have strenuously opposed the plea of the applicant by filing counter affidavit, challenging the cause of the applicant. The learned counsel for the respondents would contend that the quantum of punishment has to be decided by the disciplinary authority and the Tribunal may not interfere in the matter of quantum of punishment. It further stressed that a departmental enquiry was initiated against the applicant vide order dated 21.05.2002 under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980, on the allegation that while posted in PS Ashok Vihar, he absented himself from duty wilfully and unauthorizedly without any intimation/permission of the competent authority on the following occasions:
S.No. D.D. No & Date D.D. NO & Absence
of absent Date of arrival
Days Hrs. Mts.
1. 46-B dated 50-B dated 154 22 20
5.2.2001 10.7.2001
2. 42-B dated 43 dated 232 19 45
15.7.2001 4.3.2002
8 OA No.4082/2015
8. It is submitted that during the above absence period, five absentee notices were issued to the applicant on 18.10.2011, 18.12.2011, 03.01.2002, 17.01.2001 and 17.01.2002 with the direction to resume duty at once otherwise strict disciplinary action will be taken against him but he did not resume his duty. Such type of long absence from Govt. duty badly affects the morale of the disciplined force.
9. It is further submitted that the departmental enquiry was entrusted to Inspr. Suresh Dabas, DIU/NW. The Enquiry Officer (EO) prepared the summary of allegations, list of witnesses and list of relied upon documents against the applicant and served the same upon him on 06.09.2002. Thereafter on transfer of the EO, the departmental enquiry was further entrusted to Inspector Bharat Singh, DIU/NW to conduct it further. Thereafter, the applicant did not attend the departmental proceedings.
10. Learned counsel for the respondents submitted that if it is presumed that the applicant was actually facing some domestic problems and disturbed state of mind, even then he was duty bound to inform the department about his grievances/problems. He should have availed the leave after getting it sanctioned from the Competent Authority but he 9 OA No.4082/2015 failed to do so and remained absent from duty wilfully and unauthorizedly. Unauthorized and willful absence from duty due to domestic problem is not an excuse. However, perusal of photocopies of medical papers shows that he visited CGHS Ayurvedic Dispensary, Kingsway Camp, New Police Line, 31 times during his above absence period but never bothered to visit the Distt. Line Ashok Vihar, Delhi or nearby Police Station to inform the department about the medical rest advised by the doctor. Besides, there is no prescription slip/ X-ray/lab test/investigation report is attached which can suggest that such a long medical rest was absolutely necessary to recover from illness. Moreover, as per S.O. No.111 and CCS (Leave) Rules, 1972, the grant of a medical certificate does not in itself confer upon the individual concerned any right to leave. The medical certificate should be forwarded to the authority competent to grant leave and final orders of the authority shall be awaited. But in the instant case, he failed to do so. He certainly violated the instructions of CCS (Leave) Rules and standing order on the subject. As such, the punishment awarded to the applicant is commensurate with the gravity of his misconduct which is legal, fair and just.
11. Reliance is placed by the learned counsel for the respondents on decision in OA No.189/2014 tiled as Manish 10 OA No.4082/2015 Kumar Vs UOI decided on 17.8.2022. Reliance is also placed on decision in WP No. 10813/2015 titled R. Dhanasekaran vs UOI and ors. of the Hon'ble High Court of Delhi decided on 29.7.2022.
12. We have given our utmost consideration to the rival contentions and have minutely perused the record placed before us.
13. We note, at the outset, that it is not correct to state that the charge of absenteeism has not been proved. The EO has held the charge as proved . The appellate authority had heard the applicant in person. His previous bad record has been taken into consideration while initiating the departmental enquiry in view of Rule 16(xi) of Delhi Police (Punishment & Appeal) Rules, 1980. Thus, the punishment order is valid, legal and justified. The applicant has thus himself accepted the fact of his unauthorized absence in the past also.
14. In the instant case before us, the applicant's past record weighed heavily against him. He has not given any application for leave. He has refused to respond to notices. This is wilful defiance of authority and shows his incorrigible behaviour. The Honourable Supreme Court in Chairman & Managing Director, V.S.P. and others Vs. Goparaju Sri Prabhakara 11 OA No.4082/2015 Hari Babu, (2008) 5 SCC 569 have observed that the Tribunal/Court may not interfere in quantum of punishment out of sympathy and emotions. It has been held thus:
"16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it.
17. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India, (1999) 1 SCC 259). ....."
15. For long unauthorized absence from duty, the punishment of dismissal of CAPF personnel cannot be held to be per se disproportionate. The above was observed by the Delhi High Court recently, in the matter of Mohd. Rafi v. Deputy Inspector General, CRPF & Ors. & Ors. [W.P.(C) 9854/2021 & CM APPLs. 30337-338/2021].
16. The Tribunal in exercise of its jurisdiction also cannot, on the basis of sympathy or sentiment, overturn a legal order. In view of the above consideration, we do not consider it a fit case to interfere with the orders of the disciplinary and 12 OA No.4082/2015 appellate authorities. Resultantly, the OA is found to be bereft of merit and is accordingly dismissed. There shall be no order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sd/