Central Administrative Tribunal - Delhi
Ct. Mahipal Singh vs Union Of India (Uoi) And Ors. on 9 February, 2001
JUDGMENT Shankar Raju, Member (J)
1. The applicant, a Constable in the Delhi Police, was previously dismissed from service on 10.1.92, The said order was challenged before the Tribunal in OA-735/93 and vide order dated 21.7.97 the OA was disposed of by issuing the following directions:
"11. In the result, we are constrained to conclude that the enquiry held against the applicant was not in accordance with the statutory rules and, therefore, the enquiry proceedings, the orders of the disciplinary and appellate authorities are quashed and set aside. As observed by their Lordships in State of Punjab and Ors. v. Dr. Harbhajan Singh Greasy, (1996) 9 SCC 322. It is now a settled law that when the enquiry was found to be faulty, it would not be proper to direct reinstatement with consequential benefits. Matter requires to be remitted to the disciplinary authority to follow the procedure from the stage at which the fault was pointed out and to take action according to law. Accordingly, we direct the respondents to hold a fresh enquiry starting from the stage of issue of a charge sheet in accordance with law and complete the .same within a period of 3 months from the date of receipt of a copy of this order, and we also direct that the applicant should fully cooperate with the aforesaid enquiry. The consequential benefits, if any, would depend on the result of the enquiry and order passed thereon."
2. Thereafter in compliance of the directions of this Tribunal (supra) the respondents passed an order dated 18.8.97 reinstating the applicant in service and thereafter proceeded to frame a charge with regard to the past record of the applicant.
3. The applicant was afforded an opportunity to adduce the defence witnesses and the enquiry officer vide his findings dated 1.12.97 held the applicant guilty of remaining absent from duty unauthorisedly for a period of 13 days and also proved the charge of habitual absentism and incorrigibility. The disciplinary authority vide an order dated 5.2.98 dismissed the applicant from service by treating the period of absence as leave without pay. On appeal, the punishment of dismissal has been reduced to forfeiture of four years' approved service permanently without cumulative effect and the intervening period from the date of dismissal to the date of reinstatement has been treated as dies-non and the period of absence was maintained as leave of the kind due. The applicant assails both the order in the present OA. The applicant has challenged the order of penalty by the appellate authority on the ground that the main charge against the applicant of remaining absent for 13 days from duty without intimating the department unauthorisedly has not been proved as through his defence evidence he has established on 19.10.90 the information regarding his illness had been communicated to the Duty Officer with a medical slip brought by his brother-in-law Nanak Chand who was produced before the SHO. Thereafter the applicant has intimated the Duty Officer about his being advised medical rest for six days as he could not walk due to paralysis. According to the applicant the SHO had directed the Constable to personally seek the permission for having medical rest. The contention of the learned Counsel is that his defence evidence and intimation sent after his over-style from leave had not at all been taken into consideration either by the enquiry officer or by the disciplinary authority. The applicant has further contended that as his absence period of 13 days has been treated as leave without pay the same is regularised and no punishment can be inflicted on the same. It has been further contended that the previous record of 33 times regarding his past absence has already been regularised by the decision taken by the respondents. As such the same cannot be taken into consideration to award the punishment to him. The applicant has lastly contended that the previous record under the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter called as the Rules) can only be taken as add on or in the form of material or charge to prove the incorrigibility of a police official or to arrive at awarding severe punishment of dismissal. According to him in absence of proof of main charge of remaining absent from duty unauthorisedly for 13 days the other charge of habitual absentism in the past would not be taken into reckoning to award a punishment upon the applicant.
4. The respondents in their reply took exception to the contentions of the applicant and contended that as in the previous OA the applicant's plea that the enquiry has been initiated without calling explanation for the grounds of absence from the applicant has not been acceded to by the Tribunal as such he is estopped from taking this plea again in this OA and it would amount to res judicata. The respondents further contended that the proceedings have been conducted in accordance with the Rules ibid and as the applicant was found habitual absentee as such he has been rightly awarded the lesser punishment by the appellate authority.
5. According to the respondents Counsel, the alleged absence of 13 days was rightly proved against the applicant, as the same was unauthorised. The respondents further contended that the enquiry was resumed from the stage of the charge in accordance with the directions of the Tribunal and the same was proved according to the rules and also the old service record cannot be ignored. The respondents have referred to the ratio of the Apex Court in B.C. Chaturvedi's case by contending that the Tribunal cannot act as an appellate authority and if the charge is proved then there would not be any interfere with the findings of the enquiry officer unless proved perverse or based on no material.
6. We have heard the learned Counsel of the applicant as well as the respondents and perused the material on record.
7. The first contention of the applicant that as the period of absence has been treated as leave without pay and further as leave of the kind due in the order of the appellate authority the same had taken a sting from the order and the charge of remaining absent is regularised and would not survive. In view of the ratio laid down by the Apex Court in State of M.P. v. Harihar Gopal, 1969 SLR 735 relied upon by the Hon'ble High Court in the case of Ex-Constable Kali Ram v. Union of India it has been held that treating the period as leave without pay would not amount to regularisation but is for the purpose of maintaining correct service record of a Government servant.
8. As regards the issue of the intimation by the applicant alongwith medical record and its non-consideration by the enquiry officer and the disciplinary authority concerned, we have perused the relevant record in this regard. The charge against the applicant regarding the over-style of the casual leave which he was granted upto 19.10.90. In the course of the enquiry the applicant produced two defence witnesses after framing of charge one of which was DW-1 SI Bhim Singh, who was Duty Officer at PS Pahar Ganj and according to his evidence at about 11.00 a.m. on 19.10.90 somebody has approached him with a medical slip of Constable Mahipal Singh and later on this person was produced before the SHO. According to his testimony Constable Mahipal has also informed the Duty Officer over telephone regarding his being advised medical rest for six days as he was unable to walk due to paralysis. The aforesaid information was simultaneously conveyed to the SHO who has directed the Constable to personally seek the permission. The aforesaid testimony is further corroborated by DW-2 Sh. Nanak Chand who has come to the Duty Officer to inform about illness of the applicant. The enquiry officer has recorded the finding on this part of charge as under:
"So far as the absence of defaulter Constable from 19.10.90 to 1.11.90 is concerned, it is apparent that this was yet another unauthorised absent from duty like the previous forty four occasions."
9. In our considered view the findings of the enquiry officer with regard to the main charge of alleged absence of 13 days is absolutely non-speaking, perverse in regard to the defence version of the applicant and his evidence regarding information sent to the Department was non at all taken into consideration. This is contrary to Rule 16 (ix) of the Rules ibid. It is worthwhile to mention here that on joining duty after being declared fit the applicant has submitted his medical report to the competent authority which was existing in the record of the respondents but the same was also not taken into consideration. From the perusal of the impugned order of dismissal which has been later on modified to a lesser punishment the disciplinary authority has altogether brushed aside this piece of evidence without applying its mind to the record of enquiry and observed as under:
"I am of the opinion that his failure to inform the department despite residing in Delhi at House No. 321-A, Gali No. 5, South Gamdi, Bhajan Pura, Delhi and not to obtain prior permission of the competent authority to avail Medical Rest at his Home, shows that his conduct speaks of his ill intention not to obey the instructions contained in S.O. No. iii and Rules, 19(5) C.C.S. Leave Rules, 1972."
10. The appellate authority while reducing the punishment too has not at all taken into consideration the fact of information conveyed to the police official by the applicant as well as his medical record. It is true that leave cannot be claimed as a matter of right under Rule 19 of the CCS (Leave) Rules, 1972 but here is a case where the applicant has not been charged for wilful absence for a period of 13 days but has been charged for unauthorised absence without prior permission. In our view the information sent by the applicant through his brother-in-law and endorsed as well as acknowledge by the Duty Officer and SHO would be a relevant factor to establish that the applicant had informed the department about his serious illness on account of paralysis for which he had produced a certificate from a Government hospital. We also find from the record that the applicant had resumed the duty on 1.11.90 and on the same day an absentee notice was sent to the applicant. In fact, there is nothing on record to show that on receiving the information on 19.10.90 regarding illness of the applicant the respondents have doubted the genuineness of the medical record and had issued any notice to the applicant for subjecting him to second medical examination as provided under Rule 19(3) of CCS (Leave) Rules. Moreover, by not taking into consideration the valid defence of the applicant, the respondents have shown non-application of mind. We are of the considered view that the absence of 13 days, as alleged against the applicant, has not been legally and validly proved against the applicant by the respondents. The applicant's defence has not at all been considered and resulted in denial of a reasonable opportunity to him which violates the cardinal principle of nature justice and fair hearing. Though, we are not encroaching upon the jurisdiction of the department to take a different view from what has been taken by the authorities but in the peculiar facts and circumstances of the case we are of the view that the respondents have failed to prove the alleged charge of unauthorised absence against the applicant for a period of 13 days. As such the action of the enquiry officer to hold the applicant guilty of this part of the charge and thereafter order of dismissal passed by the appellate authority and order of the reduced punishment passed by the appellate authority would not be legally sustainable with regard to the charge of remaining absent for a period of 13 days.
11. The next issue for our consideration is that the Tribunal in its previous orders supra directed the respondents to resume the enquiry by including the previous record in the charge. We have carefully considered the plea of res-judicata, as alleged by the respondents' Counsel and we find that the grounds taken by the applicant in this OA are subjected to the fresh orders passed by the respondents and the same having not been dealt with by the Tribunal in the previous judgment supra, the plea of resjudicata would not be legally tenable in this case and the same is rejected.
12. The contention taken by the applicant that as the main charge against the applicant of remaining absent unauthorisedly for a period of 13 days could not be proved, maintaining the reduced punishment solely on the charge of incorrigibility and habitual absentism by taking into consideration the previous bad record would be against the Rules, ibid. The learned Counsel of the applicant Sh. Ajesh Luthra referred to Rule 10 and 16 (xi) of the Rules ibid and contended that resort can be taken to the previous bad record of a police official only when the main charge against a police official is proved and thereafter if the previous bad record indicates continued misconduct reflecting incorrigibility and also if the disciplinary authority decides to inflict a severe punishment upon that police official only then as an add on the previous bad record could be taken into consideration. According to the applicant the previous bad record shall not be basis of a punishment upon a police official independently. We have carefully considered the rival contentions on this plea and perused the relevant rules ibid. Rule 10 postulates that in the any event the continued misconduct indicates incorrigibility of a police official and if the charge is proved against him would entail ordinarily dismissal from service as it would indicate incorrigibility of a police official. Rule 16 (xi) which is a procedural rule provides that in the event it is considered by the disciplinary authority to award a severe punishment the previous bad record would form a definite charge. In the previous judgment (supra) the Tribunal has not gone into this question of legality of main charge against the applicant and merely on the basis that the disciplinary authority relied upon the previous bad record to award the punishment of dismissal, remanded back the case for taking action in accordance with Rule 16(ix) ibid. The respondents in our view to comply with the provisions of Rule 16(xi) inducted the previous bad record of the applicant as charge in the charge framed against the applicant. Ultimately, the disciplinary authority relying upon the previous bad record imposed the extreme punishment of dismissal upon the applicant. The appellate authority taking a lenient view reduced the punishment to forfeiture of 4 years approved service despite the fact that the incorrigibility of the applicant was established. In our view the import of Rule 16(xi) ibid has not been adhered to by the appellate authority while reducing the punishment. We are also of the considered view that in the event the main charge alleged against the applicant has failed to be established by the respondents then the reliance on the previous bad record to impose reduced punishment upon the applicant by treating it as main charge framed against the applicant would be contrary to the statutory rules ibid. We hold that in the event the main charge levelled against the police official is not proved then maintaining a punishment on his previous bad record only would be illegal and contrary to the rules. In this view of ours we are fortified by the judgment of this Tribunal dated 11.12.2000 in OA-643/93.
13. Having regard to the discussion made above, we are of the view that the respondents have failed to prove the main charge against the applicant of remaining absent for 13 days and as such the reduced punishment inflicted upon the applicant on the basis of his past record would not be legally sustainable. As the dismissal order of the applicant is merged into the order of the appellate authority, we allow the OA and accordingly set aside the order of appellate authority dated 5.2.98. As the applicant has already been reinstated in pursuance of this order, the same would not be affected by this order. The respondents are directed to restore to the applicant his withheld pay and increments and also to treat the intervening period from the date of dismissal to the date of re-instatement of the applicant as on duty except back wages in accordance with the rules and instructions on the subject. There would be no order as to costs.