Central Administrative Tribunal - Delhi
Devender Kumar vs Comm. Of Police on 8 September, 2016
Central Administrative Tribunal
Principal Bench
OA No. 3164/2013
Order reserved on: 14.07.2016
Order pronounced on: 08.09.2016
Hon'ble Mr. Justice M.S.Sullar, Member (J)
Hon'ble Mr. V. N. Gaur, Member (A)
Ex. SI Devender Kumar No.2101/D,
S/o Sh. Ram Niwas Gupta,
r/o 107/9, Kishan Garh,
New Delhi-110070.
- Applicant
(By Advocate: Mr. Ashwani Bhardwaj)
Versus
1. Commissioner of Police, Delhi,
Indraprastha Estate, New Delhi.
2. Special Commissioner of Police,
Operations, Delhi,
Indraprastha Estate, New Delhi.
3. Deputy Commissioner of Police,
Communication, Old Police Line,
Delhi-54.
- Respondents
(By Advocate: Mr. N.K. Singh for Mrs. Avnish Ahlawat)
ORDER
Hon'ble Mr. V.N. Gaur, Member (A) The applicant has filed this OA with the following prayer:
"a. Quash the S.C.N.No.493-94/CR/DCP/Comm. Dt. 27.01.2012, and b. Quash the Order No.3005-40/CR/DCP/Comm.Dt. 06.06.2012, and c. Quash the Order No.1248/P.Sec.Spl.C.P./Ops. Dt. 05.12.2012, and 2 OA No.3164/2013 d. Direct the respondents to grant pending salary to the applicant till date, i.e. salary from July, 1999 to December, 2010 and from March, 2011 till date, along with arrears thereof with interest 18% p.a. and direct the respondents to allow the applicant to join his duties, or in alternate to accept the request to accept his VRS or in alternate to grant Invalid pension to the applicant, and e. Allow the OA with all consequential benefits of pay allowances and seniority benefits with all arrears, and f. Pass any other or further order(s), in favour of the applicant, which this Hon'ble Tribunal may deem fit, just and proper in the above-mentioned facts & circumstances."
2. The litigation in this case has a long and chequered history arising out of the alleged absence of the applicant from duty without authorisation. The brief facts of the case are that the applicant, SI (Store) working in Delhi Police, was detailed for duty in Security Control Room on 10.06.1998. He did not report there and absented without taking approval of the competent authority. Admittedly the applicant informed the Duty Officer Security Control Room SI Hare Ram on phone that he was ill and Doctor of CGHS dispensary had advised him medical rest. He was advised to first report to the duty station and take approval before proceeding on medical leave. However, the applicant continued to absent himself from 10.06.1998 to 21.07.1999 (407 days) by sending leave applications with medical certificate for intermittent periods, showing his address as the security control room without mentioning his actual residential address. The respondents sent absentee notices on 18.06.1998, 21.09.1998, 06.10.1998 and 07.01.1999 at his permanent address and other two addresses that were available in the records. He was also advised to take 3 OA No.3164/2013 second medical opinion by presenting himself before the Chief Medical Officer of Aruna Asaf Ali Hospital, Delhi but letters dated 10.07.1998, 15.07.1998 and 28.07.1998 were returned undelivered. The respondents decided to initiate departmental enquiry against the applicant vide order dated 01.04.1999 for violation of Rule 19 of CCS (Leave) Rules, 1972 and SO No.111.
3. Separately there was another disciplinary proceeding against the applicant in some other case in which the applicant was dismissed from service. The departmental enquiry dated 01.04.1999 (ibid) was, therefore, kept in abeyance. The applicant challenged his dismissal order passed by the Disciplinary Authority (DA) on 20.02.1999 in OA No.1807/2003 which was disposed of by this Tribunal by order dated 12.01.2004 directing the Appellate Authority (AA) to decide his appeal which was still pending. Once the AA upheld the order of the DA, the applicant approached this Tribunal again in OA No.2151/2004 assailing the orders of DA and AA. This Tribunal by order dated 18.07.2005 quashed the impugned orders as the AA had taken into account previous bad record of the applicant without giving him opportunity to defend himself as mandated by sub-Rule (xi) of Rule 16 of Delhi Police (Punishment and Appeal) Rules, 1980 and granted liberty to the respondents to proceed as per the rules. The respondents approached the Hon'ble High Court of Delhi in Writ Petition no.22125-57/2005 against the order of the Tribunal 4 OA No.3164/2013 dated 18.07.2005 but the same was dismissed by order dated 23.11.2005 directing the DA to pass an order in accordance with law and to decide the question of back wages and other benefits from the date of his removal to the date of his reinstatement after culmination of the departmental proceeding and depending on the final outcome. The applicant was reinstated on 12.01.2006, and dismissed again by the order passed by the DA w.e.f. 24.02.2006 which was affirmed by the AA. The applicant challenged these orders in OA No.1907/2009 on the ground that the communications during the disciplinary proceeding were sent at a wrong address. The Tribunal by order dated 08.03.2010 allowed the OA by setting aside the impugned orders with liberty to respondents to resume the proceedings from the stage of summary of allegations. It was further ordered that the interregnum shall be decided as per the enquiry proceedings and according to the rules and instructions and law on the subject. This order was also challenged in a writ petition no.6526/2010 but was upheld by the Hon'ble High Court of Delhi by order dated 27.09.2010. The applicant was reinstated in service on 08.10.2010 subject to SLP, if any, to be filed in the matter. The respondents also ordered that the intervening period of his dismissal from 22.07.1999 to 08.10.2010 will be decided later on. The applicant while reporting for duty for reinstatement did not submit his medical fitness certificate. The prescription slip of 5 OA No.3164/2013 AIIMS submitted by him had endorsement that "not fit for duties due to long term process of these chronic non-curable diseases"
and carried advice of further bed rest. The applicant was referred to AIIMS for a Medical Board. After some failed attempts due to non-cooperation of the applicant he could be examined by the Medical Board 24.08.2013. The report stated that he was diagnosed to have various diseases and was advised treatment for the same. It also stated that the condition of the applicant did not completely and permanently incapacitate him for further service in Delhi Police. The respondents took a view that invalid pension could not be granted to him. Since the applicant has not joined back in Delhi Police, the disciplinary enquiry initiated against him, which was ordered to be resumed from the stage of summary of allegations vide order dated 16.08.2011 following the order of High Court dated 27.09.2010, is still in abeyance. The respondents in the meantime after giving show cause notice date 27.01.2012 have decided the period 01.06.1998 to 21.07.1999 as not spent on duty for all intent and purposes by order dated 06.06.2012. The representation of the applicant against this order has also been rejected by the respondents by order dated 05.12.2012.
4. In the above background of facts, learned counsel submitted that the impugned orders are confined to the decision of the respondents with regard to the absence of the applicant during 6 OA No.3164/2013 the period 10.06.1998 to 21.07.1999. The show cause notice was given to the applicant on 27.01.2012 which was replied by the applicant but without considering the genuine grounds mentioned by the applicant, the DA came to the conclusion that the applicant had remained absent intentionally and unauthorisedly, and therefore, the period of absence of 407 days was decided as 'not spent on duty for all intents and purposes' which shall not be regularised in any manner. The representation submitted by the applicant was also rejected. The fact is that on 10.06.1998 the applicant had gone to the CGHS dispensary as he was not feeling well. On being advised to take bed rest, he informed the Duty Officer, Security Control Room but the Duty Officer insisted that he should come and report before availing leave on medical advice which in the given circumstances was not possible. Referring to various medical prescriptions and reports of pathological and radiological investigations placed on record, learned counsel submitted that the applicant had given complete documentary evidence to prove that his absence during the alleged period was for medical reasons. The respondents could not have denied medical leave for that period. It was beyond logic that a person who has been advised medical rest was expected to go to the place of duty for applying leave. By illegally preventing him from joining duty and denying salary for so many years the respondents have driven the applicant to a distressful situation and instead of 7 OA No.3164/2013 taking a sympathetic view, the respondents are bent upon penalising him illegally and in a biased manner. They are fully aware of the medical condition of the applicant as certified by the AIIMS. The respondents have also brought in extraneous factors like a false accusation that the applicant is engaged in running of one Aditya Institute of Technology at Kishan Garh, Vasant Kunj, Delhi. According to the learned counsel, the institute is run by his father Sh. R.N. Gupta and the applicant has nothing to do with that institution.
5. Learned counsel for the respondents, on the other hand, vehemently denied the arguments of the learned counsel for the applicant and submitted that under the C.C.S. (Leave) Rules, 1972, which have been adopted by the Delhi Police, the applicant had to seek prior permission even for medical leave. The applicant had first proceeded on leave, and thereafter, was trying to contact his office in connection with the post facto approval of his absence. Even for that, the applicant did not submit proper medical certificates that could be considered for regularising the period of absence. Referring to the table showing the details of applications submitted by the applicant for regularising his period of absence on medical ground on page 7 & 8 of the counter reply (which is also a part of the impugned order dated 06.06.2012), the learned counsel submitted that the table showed that against the absence for a period of 407 days, the medical certificates were 8 OA No.3164/2013 submitted only for broken periods totalling 56 days only, but the applicant insisted for regularisation of entire period of absence of 407 days. In such a situation, the respondents had no option but to treat the period of absence as unauthorised and not entitled to any pay and allowances.
6. We have heard the learned counsel for the parties and perused the record. As submitted by the learned counsel for the applicant we are confining ourselves to the relief related to the period 10.06.1998 to 21.07.1999 as the matter of salary for the period after July 1999 and other benefits prayed for in the clause
(d) and (e) of the payers in the OA are arising out of another disciplinary proceeding and series of litigation. The main arguments put forward by the learned counsel for the applicant are that it was wrong to say that the applicant proceeded on leave without any information because it is an admitted fact that Duty Officer was duly informed by the applicant on telephone. A sick person could not have been expected to first come to office and then obtain medical leave of bed rest. The respondents were fully aware of the medical condition of the applicant, and documents like prescription slip, medical certificates etc. had been submitted by the applicant to the respondents covering the entire period of absence. The medical examination conducted by the Board had also confirmed that he had multiple diseases, but the respondents 9 OA No.3164/2013 in a hostile manner, refused to take cognizance of such evidences available on record.
7. The argument of the learned counsel for the applicant that the applicant could not be expected to come to office and obtain medical leave before availing bed rest, supports the case of the applicant only to a limited extent. The applicant has not pleaded that he was confined to bed all through the period of absence of 407 days. He has also not placed on record medical certificates covering the entire period of absence showing his inability to visit his office even once for obtaining approval for proceeding on medical leave. From the information tabulated by the respondents in their counter reply at page 7-8 (also reproduced hereunder), it can be seen that the applicant submitted 11 applications for sanction of leave covering a period of 120 days, and the medical certificate was enclosed only in respect of 56 days of absence.
Sl. Application received Medical rest Medical No. in this office on period mentioned Certificate
1. Application dated 01 day for 10-06- Not enclosed 10-06-98 (posted on 1998 12-06-1998 as per post office stamp) received on 19-06- 1998
2. Application dated 07 days w.e.f. 11- - do -
11-06-98 (posted on 06-1998 to 17-
12-06-1998) 06-1998 received on 19-06- 1998 10 OA No.3164/2013
3. Application dated 07 days w.e.f. 18- - do -
18-06-1998 received 06-1998 to 24- on 22-06-1998 06-1998
4. Application dated 07 days w.e.f. 25- - do -
25-06-1998 received 06-1998 to 01- on 30-06-1998 07-1998
5. Application dated 07 days w.e.f. 02- - do -
02-07-1998 received 07-1998 to 08- on 03-07-1998 07-1998
6. Application dated 14 days w.e.f. 09- - do -
09-07-1998 received 07-1998 to 22- on 16-07-1998 07-1998
7. Application dated 07 days w.e.f. 23- Photocopy Nil received on 24- 07-1998 to 29- enclosed 07-1998 07-1998
8. Application dated 02 weeks w.e.f. - do -
30-07-1998 received 30-07-1998 to on 01-08-1998 12-08-1998
9. Application dated 03 weeks w.e.f. - do -
13-08-1998 received 13-08-1998 to on 14-08-1998 02-09-1998
10. Application dated 14 days w.e.f. 09- - do - 03-09-1998 received 07-1998 to 22-
on 07-09-1998 07-1998
11. Application dated 03weeksw.e.f. 17- Not Enclosed 17-09-1998 received 09-1998 to 07-
on 24-09-1998 10-1998
8. Under Rule 19 of CCS (Leave) Rules, the following procedure has been prescribed for grant of medical leave:
"19. Grant of leave on medical certificate to Gazetted and non-Gazetted Government servants - (1) An application for leave on medical certificate made by a non-gazetted Government servant, shall be accompanied by a medical certificate in Form 4 given by an Authorised Medical Attendant or by a registered medical practitioner, defining as clearly as possible the nature and probable duration of the illness.
Note- A certificate given by a registered Ayurvedic, Unani or Homoeopathic medical practitioner or by a registered Dentist in the case of dental ailments or by an honorary Medical Officer 11 OA No.3164/2013 may also be accepted, provided such certificate is accepted for the same purpose in respect of its own employees by the Government of the State in which the Central Government servant falls ill or to which he proceeds for treatment. (2) A Medical Officer shall not recommend the grant of leave in any case in which there appears to be no reasonable prospect that the Government servant concerned will ever be fit to resume his duties and in such case, the opinion that the Government servant is permanently unfit for Government service shall be recorded in the medical certificate. (3) The authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of a Civil Surgeon or Staff Surgeon, to have the applicant medically examined on the earliest possible date.
(4) It shall be the duty of the Government Medical Officer referred to in sub-rule (3) to express an opinion both as regards the facts of the illness and as regards the necessity for the amount of leave recommended and for that purpose may either require the applicant to appear before himself or before a Medical Officer nominated by himself.
(5) The grant of medical certificate under this rule does not in itself confer upon the Government servant concerned any right to leave; the medical certificate shall be forwarded to the authority competent to grant leave and orders of that authority awaited.
(6) The authority competent to grant leave may, in its discretion, waive the production of a medical certificate in case of an application for leave for a period not exceeding three days at a time. Such leave shall not, however, be treated as leave on medical certificate and shall be debited against leave other than leave on medical grounds."
9. We do not find any pleading that the applicant should not be governed by the provisions of the above mentioned rule. The applicant has also not pleaded to the respondents, or placed on record evidence to show that he could not have even once reported for duty and obtained permission for medical leave. It is trite that the leave, on medical grounds or otherwise, is not a right of an employee. Further when there is a provision in the rule that he has to report the competent officer and obtain leave it has to be complied with, more so in the police organisation where discipline 12 OA No.3164/2013 is as much an important factor as the right of an employee. Here the applicant has not even applied for leave covering the entire period of absence or submitted the requisite medical certificates. The relevant provision of Rule 19 of the CCS (Leave) Rules read as follows:
19. Grant of leave on medical certificate to Gazetted and non-Gazetted Government servants (1) An application for leave on medical certificate made by-
x x x
(ii) a non-Gazetted Government servant, shall be accompanied by a medical certificate Form 4 given by a CGHS Doctor if such a Government servant is a CGHS beneficiary or by Government Hospital or by an Authorized Medical Attendant if he is not a CGHS beneficiary; and by an Authorized Doctor of the private hospital, recognized under CGHS/Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by the Competent Authority in respect of particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare:
x x x (3) The authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of a Civil Surgeon or Staff Surgeon, to have the applicant medically examined on the earliest possible date.
(4) It shall be the duty of the Government Medical Officer referred to in sub-rule (3) to express an opinion both as regards the facts of the illness and as regards the necessity for the amount of leave recommended and for that purpose may either require the applicant to appear before himself or before a Medical Officer nominated by himself.
(5) The grant of medical certificate under this rule does not in itself confer upon the Government servant concerned any right to leave; the medical certificate shall be forwarded to the authority competent to grant leave and orders of that authority awaited. (6) The authority competent to grant leave may, in its discretion, waive the production of a medical certificate in 13 OA No.3164/2013 case of an application for leave for a period not exceeding three days at a time. Such leave shall not, however, be treated as leave on medical certificate and shall be debited against leave other than leave on medical grounds."
10. The applicant has neither submitted medical certificates in accordance with the above rule nor can he claim medical leave as a matter of right.
11. The applicant has also taken an argument that he did not receive the absentee notices and other letters to appear before the CMO, Aruna Asaf Ali Hospital as these were sent at a wrong address. The respondents have stated that the notices and letters were sent to three addresses including his permanent address. We find it a strange argument of the applicant that while the applicant should rightly expect to be put on notice before any adverse action is taken against him, by implication there is no obligation on his part, as member of a disciplined police force, to report to his superior at least when he was not confined to bed during the span of 407 days of his absence; and, that it was also not his responsibility to submit proper leave applications with medical certificates and check the position from his office. He cannot shift the entire responsibility to his employer to consider his incomplete applications, ensure his medical examination, sanction leave and inform him at his home even when he did not disclose his address during the leave. The contentions of the applicant are therefore not convincing at all. 14 OA No.3164/2013
12. For the reasons stated in the preceding paras we do not find any merit in the OA and the same is dismissed accordingly.
(V.N. Gaur) (Justice M.S.Sullar) Member (A) Member (J) 'sd' September 8, 2016