Central Administrative Tribunal - Delhi
Ex. Constable Nagraj S/O Jhoota Ram vs Union Of India (Uoi) Through Secretary, ... on 8 May, 2006
ORDER
V.K. Majotra, Vice-Chairman (A)
1. Through this OA has been challenged punishment of dismissal from service on the charge of unauthorized and wilful absence without any intimation/prior permission of the competent authority after transfer. It was alleged that applicant had remained absent in this manner from 17.5.2001 to 9.5.2002. Applicant has sought quashment of the impugned orders by which applicant was dismissed from service and reinstatement in service with all consequential benefits.
2. The learned Counsel of applicant has challenged the disciplinary proceedings against applicant resulting in the punishment of dismissal from service on the following grounds:
(1) The disciplinary proceedings were initiated against applicant in violation of Rule 14(4) of the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter called the 1980 Rules) inasmuch as orders for the enquiry were issued by DCP, New Delhi District, who was no longer the competent authority as applicant stood transferred to the disciplinary control of DCP, IVth Bn. on 17.5.2001, having been relieved from New Delhi District. In this connection, the learned Counsel relied on order dated 4.1.2001 in OA No. 2671/1999 (CAT Principal Bench) - Kumar Pal v. Government of NCT of Delhi and Ors.
(2) Respondents have also violated the provisions of Rule 16(xi) of the aforesaid 1980 Rules by taking into consideration the so called previous bad record of applicant which did not form the basis of a definite charge against applicant. In this regard, the learned Counsel drew support from order dated 11.1.2001 in OA No. 1364/1999 (CAT Principal Bench) - Ex. Ct. Gopal Singh v. Union of India and Ors.
(3) Applicants appeal had been rejected on 16.1.2004 without application of mind by a mechanical and non-speaking order.
(4) The punishment of dismissal from service awarded to applicant is disproportionate to the gravity of the alleged misconduct.
3. On the other hand, the learned Counsel of respondents rebutting the contentions raised on behalf of applicant stated that applicant was relieved from New Delhi District on 17.5.2001. He did not resume his duty at the new place of posting, i.e., IVth Battalion, DAP. Since he did not resume his duty in the IVth Battalion, DAP, he was not under the administrative control of the IVth Battalion, DAP. He remained under the previous administrative controlling authority, i.e., New Delhi district. Thus, DCP, New Delhi District rightly initiated the departmental enquiry against applicant and that there is no violation of Rule 14(4) ibid.
4. In regard to the contention of applicant that previous bad record of applicant did not constitute a specific charge, and as such, it could not have been taken into consideration by the authorities for imposing punishment of dismissal from service, the learned Counsel submitted that the authorities have not committed any violation of Rule 16(xi) as well as of Article 311(2) of the Constitution, as applicant was provided full opportunity of defence.
5. The learned Counsel then denied that applicants appeal had been rejected by any mechanical/non-speaking orders.
6. In the end, the learned Counsel of respondents contended that the punishment awarded to applicant is quite commensurate with the gravity of his misconduct as wilful and unauthorized absence in a disciplined force for a long period, as in the present case, is one of the gravest misconducts which cannot be tolerated.
7. Before we start evaluating the relative strength of the respective contentions of the parties, it is beneficial to extract the relevant provisions in issue here. Rule 14(4) ibid reads as follows:
(4) The disciplinary action shall be initiated by the competent authority under whose disciplinary control the police officer concerned is working at the time it is decided to initiate disciplinary action.
Rule 16(xi) reads as follows:
(xi) if it is considered necessary to award a severe punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him and he shall be given opportunity to defend himself as required by rules.
8. Before we advert to various merits of the case, it is necessary to address the fundamental issue whether the disciplinary proceedings against applicant were initiated by a competent authority. In the matter of Kumar Pal (supra) it was held that the disciplinary control would connote actual working of a police officer when it was decided to initiate disciplinary action against him. Applicant in that case was allowed to resume duty at Security Branch, where he worked till the date of his dismissal. In the absentee notices, no directions were issued therein directing the applicant to join back at 9th Battalion, DAP. Maintenance of the personal file at the 9th Battalion from where the applicant was transferred, was considered of no consequence and it was held that the DCP in charge of the new place of posting would have disciplinary control over the applicant and would be competent to initiate disciplinary proceedings.
9. In the present case, applicant had been working at PS Ch. Puri under the DCP, New Delhi District. He was transferred to Ivth Battalion, DAP vide order dated 17.5.2001 and was relieved. Applicant did not join at the new place of posting despite issuance of absentee notice and direction to resume duty failing which necessary disciplinary action would be initiated against him. This absentee notice was served upon him on 20.12.2001 but applicant did not resume duty and remained absent for a long period of 358 days. In the matter of Kumar Pal (supra), the applicant while working in the 9th Battalion was deputed temporarily to perform in E Block Security Lines, Delhi. However, he absented himself w.e.f. 12.11.1996. He ultimately joined duty at E Block Security Lines, Delhi, where he continued to perform duties till the date of dismissal. A departmental enquiry was ordered against him by DCP 9th Battalion, DAP. He was removed from service also by the DCP 9th Battalion. After observing that working of a police officer would not be adjudged from grant of leave etc., and it would be directly related to actual work performed by him, it was held that the applicant was performing his duties at the new place of posting under the disciplinary control of DCP, Security. In the present case, applicant had been transferred from PS Ch. Puri, New Delhi District and was relieved on transfer to IVth Battalion, DAP. He did not join there and remained absent for a long period of 358 days. It is clear that the present was not a case of grant of leave; it was a case of transfer and matters like leave cannot be equated with transfer. The issue before us is that once an incumbent is relieved on transfer to join the next post but has not joined there, who would be his controlling/disciplinary authority - the authority over the post from which he was transferred, or the authority over the post he is transferred to? No rules or instructions in this regard have been placed before us. In such a situation, we have to assess various possibilities, namely, who will be the disciplinary/controlling authority in a situation -
(i) where the incumbent despite being relieved does not join on the new post and absents for a long period;
(ii) when he is ultimately allowed to join on the new post before any disciplinary action is initiated against him; and
(iii) when he is not allowed to join on the new post and has to revert to previous post.
10. In the absence of any rules/instructions on the subject, we have to look closely at the text of Rule 14(4) ibid. It states, disciplinary action shall be initiated by the competent authority under whose disciplinary control the police officer concerned is working at the time it is decided to initiate disciplinary action. The expression the police officer concerned is working at the time acquires significance. In the present case, applicant had been transferred and relieved. He had not joined at the new place of posting when the enquiry proceedings were initiated. During the period after relief from the previous post and before joining on the new place, who is the competent authority to initiate disciplinary action, is the question. As the applicant had not joined at the new place of posting, it cannot be said he was working at the time it was decided to initiate disciplinary action, under the new disciplinary/controlling authority. His working can be related to the previous post during this interregnum period despite transfer and relief as he had not taken charge of the new post. Such an interpretation seems to us to be the correct interpretation in the absence of any rules and instructions on the subject, and it flows from harmonious construction of rule 14 (3) and rule 14(4) ibid. Rule 14(3) reads as follows:
(3) Punishments mentioned at Sl. No. (i) to (vii) in Rule 5 supra shall be awarded by appointing authorities only after a regular departmental enquiry. All Deputy Commissioners of Police, Additional Commissioners of Police shall exercise this authority over all officers of the subordinate ranks civilian irrespective of the fact whether such an officer has actually appointed the concerned subordinate police officer and whether or not he was actually working under him. The procedure for holding departmental enquiries is explained in Rule 16 below.
All DCPs have been conferred powers under this provision to award punishment mentioned at Sl. No. (i) to (vii) in Rule-5 ibid over all officers of subordinate ranks whether or not they were actually working under them. If punishment can be awarded by these authorities whether or not the subordinate person had worked under them, disciplinary action can certainly be initiated by a DCP from under whom a subordinate person has been transferred out as by mere initiation of disciplinary action no prejudice would be caused to the incumbent.
11. It is relevant to mention here that in the case of Kumar Pal (supra) which in turn has relied upon the case of Kishori Lal Dogra v. Commissioner of Police and Ors. (1994) 26 ATC 319, it was viewed that disciplinary action would be initiated by DCP having control over the next and not previous post. The import of the provisions of Rule 14(3) ibid was not at all considered in these matters. If the interpretation of these judgments is taken to be correct, then we may come across a situation where a subordinate person, having been relieved from the previous station absents and never reports for the duty at the next station, would totally escape disciplinary action as the controlling authority at the next station would not be in a position to initiate disciplinary action for want of transfer of records and relevant information about the alleged misconduct. Such cannot be the intent behind the rule that in such situations the incumbent should go scot-free and not taken to task. The balance of convenience is also in favour of the authority at the previous place of posting for initiating disciplinary action as all relevant records are available at the previous place and the applicant has also not moved to the next station and has not taken over the charge there.
12. From the above discussion, in our considered view, in all the three situations, the disciplinary/controlling authority would be the controlling authority of the previous post/station. In the present case, as such, DCP, New Delhi District, i.e., from where the police officer was transferred would be the disciplinary/controlling authority to initiate disciplinary proceedings. However, if there were rules and instructions to the contrary, the above interpretation would change.
13. In the facts and circumstances of the case, we have a different view than that of our coordinate Bench in the case of Kumar Pal (supra). It is imperative, therefore, that this issue should be resolved by a larger Bench. To facilitate, the question for consideration of the larger Bench is formulated as follows:
Which authority would be competent under the Delhi Police (Punishment and Appeal) Rules, 1980, to initiate disciplinary action against a police officer who has been transferred and relieved from a post/station but has not joined on the new post/station, and disciplinary action has to be initiated during this interregnum period?
14. Registry to place the file before the Honble Chairman to constitute a larger Bench.