Central Administrative Tribunal - Delhi
Ex Ct Surender Pal vs Comm. Of Police on 20 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 1881/1997
Reserved on : 12.07.2016
Pronounced on :20.07.2016
Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. V. N. Gaur, Member (A)
Ex-Ct. Surender Pal, S/o. Sh. Daya Nand,
R/o Village & P.O. Nizampur,
P. S. Sultanpur,
Delhi. ...Applicant
(Advocate : Mr. A. K. Behera with Mr. U. Srivastava)
Versus
1. N.C.T. of Delhi through
The Chief Secretary,
Old Secretariat, Delhi.
2. The Commissioner of Police
Delhi Police Head Quarters
I.P. Estate, New Delhi.
3. The Additional Commissioner of Police,
Delhi Police Head Quarters
I.P. Estate, New Delhi.
4. The Additional Deputy Commissioner of Police,
Police Control Room, I.P. Estate,
New Delhi. ....Respondents
(By Advocate : Mr. Vijay Pandita)
ORDER
Justice M. S. Sullar, Member (J) :
Seemingly, the instant case has a chequered history. However, the contour of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant Original Application (OA), and emanating from the record, is that, applicant, Shri Surender Pal, 2 O.A 1881/1997 S/o. Sh. Daya Nand was working as Constable in Delhi Police. According to the department, he was a habitual absentee. He was deputed at PCR at Ros Budh but he did not report for duty. He was marked absent vide DD No. 9-B dated 24.05.1993. Thus, he was stated to have repeatedly committed grave misconduct while performing his official duty as Constable in Delhi Police.
2. As a consequence thereof, a departmental enquiry was initiated against the applicant under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 (hereafter to be referred as "D.P. Rules"), and the following summary of allegations were served to him:-
"I, Rajlaxmi, Inspr./PCR charge you constable Surender Pal No. 3000/PCR, (PIS No. 28824163) was detailed for reserved duty at Rose Bud/PCR from 8 am to 2 pm. But you did not report for duty, thus you were marked absent vide DD No. 9-B dated 24.05.93, Rose Bud/PCR. An absentee notice vide No. 1292/Rose Bud/PCR dt. 16.06.93 was sent at your residence i.e. Village & PO Nizampur, PS Kanjhawla, Delhi through H. Ct. Ram Phal No. 1429-PCR the said notice was received by you on 28.06.93 against your proper receipt. But you did not bother to resume your duty or send any information to the department about your whereabouts. You are still running absent wilfully/unauthorisedly.
Your previous records shows that you absented yourself from duty on 43 occasions and did not improve yourself although several major/minor punishments were inflicted upon you on the same grounds. You rather proved yourself incorrigible type of constable and remained absent from duty w.e.f. 24.05.93.
The above act on your part, amounts to gross misconduct, carelessness and remissness in discharge of official duties which renders you liable to be dealt with departmentally under section 21 of Delhi Police Act 1978. "
3. Consequently, an Enquiry Officer (E.O) was appointed to complete the inquiry vide order dated 17.08.93 by the competent authority. During the course of enquiry, although all efforts were made to summon the applicant but he did not join the departmental proceeding intentionally.
3O.A 1881/1997
4. Having recorded the statements of PWs, having considered the relevant documents and after completion of all the codal formalities, the E.O. concluded that charge against the applicant stands duly proved vide inquiry report dated 24.09.1993 (Annexure A-7).
5. Agreeing with the inquiry report and after following the due procedure, a penalty of dismissal from service was imposed on the applicant vide order dated 17.11.1993 (Annexure A/I) by the Disciplinary Authority (D.A).
6. In pursuance of order dated 17.09.1996 passed in O.A No. 1225/96 by this Tribunal, an appeal filed by him was dismissed by way of order dated 23.10.96 by the Appellate Authority (A.A) as well.
7. The applicant did not feel satisfied and filed another O.A bearing No. 1881/1997 which was allowed and the impugned orders (therein) were quashed. The applicant was ordered to be reinstated in service with all consequential benefits by means of order dated 22.02.2000 in O.A No. 1881/1997, (Annexure A/11) by this Tribunal. Resultantly, the applicant was provisionally reinstated in service from the date of dismissal i.e., with effect from 17.09.1993.
8. Dissatisfied with the order of this Tribunal dated 22.02.2000 in O.A No. 1881/1997 (Annexure A-11), the Civil Writ Petition bearing No. 374/2001, filed by the Commissioner of Police was accepted by means of order dated 04.09.2009 by Hon'ble High Court of Delhi, which, in substance, is as under :-
4O.A 1881/1997
"The Petitioner is aggrieved by an order dated 22nd February, 2000 passed by the Central Administrative Tribunal, Principal Bench in OA No. 1881/1997.
Relying upon the decision of the Supreme Court in State of Punjab and others v. Bakshish Singh, 1998 (7) JT 142, the Tribunal has decided the original application filed by the Respondent in his favour.
The Petitioner then preferred the present writ petition challenging the order of the Tribunal. The decision rendered by the Supreme Court in Bakshish Singh does not cover the case of the Respondent in view of the subsequent decision of the Supreme Court in Maan Singh v. Union of India and others, JT 2003 (2) SC 514.
Under these circumstances, we set aside the impugned order and remit the matter back to the Tribunal for considering the other issues that the Respondent may choose to raise.
The writ petition is allowed and the impugned order is set aside.
The parties will appear before the Tribunal for directions on 5th October, 2009."
9. Instead of pursuing the matter, the applicant had withdrawn the said O.A. However, liberty was granted to him to prefer his remedy before the departmental authorities vide order dated 13.08.2010 (Annexure A-13) by this Tribunal.
10. Thereafter, keeping in view the order of Delhi High Court and the fact of withdrawal of O.A No. 1881/97 by the applicant, he was again awarded the punishment of dismissal from service vide impugned order dated 17.11.1993 (Annexure A-14) by the competent authority, which in substance is as under :-
"Now, therefore, in view of judgments of Hon'ble High Court of Delhi in CWP No. 374/2001 as well as Hon'ble CAT, Delhi in O.A No. 1881/1997, the orders of disciplinary authority vide No. 14512-82/HAP(P-II)/PCR dt. 17.11.93 awarding punishment of dismissal from service to Constable Surender Pal No. 3000/PCR, now 374/SD (PIS No. 28824163) and orders of appellate authority rejecting his appeal vide No. 918-20/P. Sec. (Ops) dt. 23.10.96 will hold good. Consequently, Constable Surender Pal, no. 3000/PCR, now 374/SD (PIS No. 28824163) stands dismissed from service w.e.f. 17.11.93. However, no recovery of salary earned by the Constable will be withdrawn from him. His absence period 24.05.93 to 16.11.93 and dismissal period from 17.11.93 to 09.08.2000 is hereby decided as period not spent on duty and the same is not being regularised in any manner."
11. The applicant has challenged the impugned order Annexure A/14 and filed the appeal (Annexure A/15). The same was 5 O.A 1881/1997 dismissed vide impugned order dated 25.08.2011 (Annexure A/16) by the A.A.
12. Aggrieved thereby, the 3rd O.A filed by the applicant bearing No. 782/2012 was dismissed by virtue of order dated 07.03.2012 by a Coordinate Bench of this Tribunal which is in the following manner :-
"Sequel to departmental enquiry, the applicant was dismissed from service. The appeal carried against the said order also came to be dismissed. However, Original Application filed by the applicant against the order aforesaid was allowed by the Tribunal, against which a writ came to be filed by the respondents, which has been allowed and the orders of this Tribunal have been set aside.
2. As to whether there was any stay or not against the orders of this Tribunal, but the fact is that the applicant, pursuant to order reinstating him in service, continued for quite sometime, for ten years or so. Hon'ble High Court while setting aside the Tribunals order remitted the matter to the Tribunal to decide if there were other issues involved in the case. The applicant would rather withdraw the Original Application with a view to exhaust departmental remedies.
3. In the circumstances as has been fully detailed above, in our view, the applicant would have no departmental remedy whatsoever. Pursuant to orders passed by the High Court, the respondents have shown the exit door to the applicant and the appeal against the order has been dismissed by the appellate authority.
4. Finding no merit in this Original Application, the same is dismissed."
13. Then the Writ Petition (Civil) No. 448/2013 filed by the applicant against the order dated 07.03.2012 of this Tribunal, was dismissed as not pressed. However, liberty was granted to him to seek revival of O.A No. 1881/1997 by means of order dated 28.01.2013 (Annexure A/18) by High Court of Delhi.
14. Thereafter, the M.As bearing No. 354/2013 and 1508/2014 were allowed and the O.A bearing no. 1881/1997 was restored/revived by way of order dated 14.01.2016 by a Coordinate Bench of this Tribunal. In the wake of separate application, the 6 O.A 1881/1997 applicant was permitted to amend the O.A and it was adjourned for final arguments.
15. Now, the applicant has challenged the impugned disciplinary proceedings and orders in the amended O.A on the following grounds:-
a) Because the applicant was not supplied with the copies of relied upon documents and statement of the witnesses along with the summary of allegations and, therefore, it violates the principle of natural justice, for this the Hon'ble Supreme Court while deciding a recent case laid down the law that the copies of the relied upon documents are not supplied to the delinquent along with the impugned charge sheet, the whole side of conducting the enquiry is illegal.
b) Because the charge sheet does not disclose the allegation specifically and, therefore, the impugned summary of allegations is vague and uncertain, and, therefore, the same is liable to be quashed. For this, the Hon'ble Supreme Court while deciding the case of Transport Commissioner(sic) of Madras Vs. R.K.S. Murty reported in JT 1994 Vol. VII SC 744 laid down the law that if the charge sheet and the charge is vague and uncertain therefore it is liable to be quashed.
c) Because the Enquiry Officer has not adopted the prescribed procedure regarding conducting the ex-parte enquiry. And, therefore, the action of the Enquiry Officer in conducting the Enquiry in its own manner is against the principal of natural justice and, therefore, the impugned order dt.
17.11.93 is liable to be quashed.
d) Because, there is good numbers of days of leave was due to the credit of the applicant at the time of passing the impugned order dt. 16.05.94 and therefore it was for the consideration of the disciplinary authority to pass an order regarding which the period in question was not regularised in leave kind in due which is requirement of CCS (Leave) Rules 1972 and hence the whole proceedings is illegal and without jurisdiction.
e) Because, the C.C.S. (Leave) Rules, 1972 are applicable in present case and Govt. authorised Medical Officer has issued the medical sickness certificates to the applicant and, therefore, the C.O. can throw these certificates out of the service records and, therefore, the action of the E.O. and the disciplinary authority is illegal.
f) Because, the disciplinary authority has not ordered the second medical opinion before taking any disciplinary action against the applicant and, therefore, in the light of the provisions laid down in CCS Leave Rules 1972 the action of the Disciplinary Authority is illegal and the impugned order of dismissal dt. 17.11.93 is liable to be set-aside.
g) Because, the second part of the impugned charge is illegal on the reason the period of alleged absence has been since regularised and, thereafter, second time the applicant cannot be punished. For this the Hon'ble Central Administrative Tribunal while deciding in case of Mange Ram Vs. Union of India & Ors./Police Commissioner & Ors. reported in 1992 (2) ATJ, 148, the whole action of D.E. is illegal.
h) Because the Enquiry Officer had gone beyond its jurisdiction and while holding the applicant guilty (sic) the Enquiry Officer had taken into account the period of conducting the D.E. in question as part of 7 O.A 1881/1997 misconduct but it was not the subject matter of the impugned charge- sheet and therefore the report of the Enquiry Officer is illegal.
i) Because, the Hon'ble Division Bench of Calcutta High Court while deciding the case of D.I.G. CISF Vs. S. K. Ray (reported in SLR 1995 (1) 133 held as under :-
"In Ved Prakash Gupta Vs. Delton Cable India Ltd. AIR 1984 (SC) (1984) (2) SLR (SC) it was held that where the punishment is shockingly disproportionate regard being had to the particular conduct and the past record or is such as no reasonable employer would ever impose in like circumstances, the tribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice will victimize the employee with extreme punishment, the unfair labour practice (sic) can well be inferred from the conduct of management. In Union of India Vs. Firaj Sharma, AIR 1994 SC 215 punishment of dismissal was imposed on the ground of over staying leave period of employee subsequent to order of rejection of application for extension of leave and there was no useful intention to flout the order. It was held by the Supreme court that the punishment of dismissal was harsh and disproportionate order for reinstatement with all monetary and service benefits granted with liberty to visit minor punishment.'
j) Because on receipt of the documents of the Departmental Proceedings the applicant preferred an appeal to the appellate authority. With the prayer that the condonation of delay in filing the appeal be considered and the appeal of the applicant be allowed by way of quashing the impugned order of dismissal but till date no reply has been given to the applicant. Hence the action of the respondents in not deciding the appeal of the applicant on merits as well as on the point of limitation is not only arbitrary but also against the mandatory provision of law. Hence the impugned order of dismissal is liable to be set aside on this ground alone.
k) Because now the fact remains that the Tribunal had quashed (sic) and set aside the impugned orders on dt. 22.02.00 consequently the applicant was reinstated in services w.e.f. 09.08.2000 accordingly further the applicant has been serving with the respondents subsequently to the entire satisfaction of his superior officials and unblemished services and therefore earned promotion to the rank of Head Constable.
l) Because it reveals from the case of record that after the judgment of the Tribunal dt. 22.02.00 in the instant O.A, the respondents firstly reinstated the applicant on 09.08.00 and thereafter challenged the said order before the Hon'ble High Court in WP(C) 374/01 which was admitted in the meanwhile the applicant mend his ways and on account of that the applicant even earned the promotion also further the writ petition of the respondents was allowed on 04.09.09 and the matter was remanded to the Tribunal for considering the other issue that the applicant may choose to raise.
m) Because admittedly after reinstatement in services on 09.08.00 there was nothing against the applicant and therefore the very basis of dismissal from service (sic) though remains but the other part of charges have (sic) gone as the applicant changed his behaviour towards his duties and liabilities and therefore due to change of circumstances the penalty of dismissal is not commensurate with the gravity of misconduct.
n) Because on the basis of the subsequent satisfactory and unblemished services earned by the applicant from 09.08.00 to 27.05.11 the penalty of dismissal is shocking and not sustainable in the eyes of law.
o) Because by resorting the penalty of dismissal the applicant who improved his behaviour and tried to became a responsible official of the respondents department became suffering from starvation along with all of his family 8 O.A 1881/1997 members including minor children/daughter and old aged ailing parents having no source of income at all.
(p) Because while restoring the penalty of dismissal from services the respondents have totally neglected the subsequent services of the applicant for the period 09.08.00 to 27.05.11 during which the applicant got promotion also whereas the same has direct bearing on the conduct of the applicant on account of which the applicant had been awarded the extreme penalty of dismissal."
16. Sequelly, the contesting respondents refuted the claim of the applicant and filed the reply to amended O.A, inter alia, pleading certain preliminary objections of limitation, delay and latches and its maintainability. On merits, according to the respondents that the departmental inquiry was duly conducted after following the due procedure contained under D.P. Rules and following the principle of natural justice. It was pleaded that applicant remained absent and did not report for his duty and absentee notice bearing No. 1292/Ros/Bud/PCR dated 16.05.1993 was sent at his residential address through Head Constable Sh. Ramphal No. 1429/PCR. The applicant received the notice on 28.06.1993 and signed the acknowledgment in token of its receipt. Still he did not bother to resume his duty or sent any information to his department about his whereabouts. He was running absent wilfully and unauthorisedly. His previous record shows that he absented himself from duty on 43 occasions and did not improve himself despite imposition of major/minor punishments in this regard. He rather proved himself incorrigible type of person and remained absent from duty with effect from 24.05.1993, which amounts to gross misconduct and carelessness in discharge of his official duty.
9O.A 1881/1997
17. According to the respondents, keeping in view his grave misconduct, departmental inquiry was initiated against him in accordance with the relevant rules. The applicant neither joined the departmental inquiry proceedings nor responded to the repeated directions of the EO. Subsequently after the completion of the prosecution evidence and after following due procedure, the E.O concluded that the charge framed against the applicant stands duly proved. Thereafter, a copy of the inquiry report was sent to him for making a representation vide office order No. 12760 dated 27.09.1993 which he has duly received against the proper receipt on 09.10.1993 but, he neither submitted any representation nor turned up for personal appearance before the D.A even after the issuance of various summons. He was rightly dismissed from service. It was also pleaded that the A.A after considering the material on record has rightly dismissed his appeal.
18. Virtually admitting the factual matrix and reiterating the validity of departmental inquiry proceedings & impugned orders, the contesting respondents have stoutly denied all other allegations and grounds contained in the O.A and prayed for its dismissal.
19. No rejoinder was filed by the applicant to the counter reply of respondents to the amended O.A. That is how we are seized of the matter.
20. At the very outset, it will not be out of place to mention here that although the applicant has pleaded the various pointed grounds to assail the impugned orders, but during the course of argument, 10 O.A 1881/1997 the learned counsel has fairly confined his argument only to the limited extent of non-issuance of notices at various stages of enquiriy, which according to him, has prejudiced the case of the applicant.
21. Having heard the learned counsel for the parties, having gone through the record with their valuable help (original enquiry record) and after bestowal of thoughts over the entire matter, we are of the firm view that there is no merit and the instant OA deserves to be dismissed for the reasons mentioned hereinbelow.
22. Ex-facie, the main argument of learned counsel that neither DA nor EO has served any notices/summons at any stage causing great prejudice to the case of the applicant, so enquiry is vitiated and impugned orders are liable to be set aside, is not only devoid of merit, but misplaced as well.
23. As is evident from the record that the applicant has wilfully absented from his duty and he was marked absent vide DD No.9-B dated 24.05.1993. An absentee notice bearing No.1291/Ros/Bud/PCR dated 16.06.1993 was sent to him on his address through HC Ram Phal No.1429/PCR, was received by the applicant on 28.06.1993 against a proper receipt. Still he did not bother to resume his duty or sent any information to his department about his whereabouts.
24. Finding no alternative, the competent authority ordered the initiation of departmental enquiry against the applicant and EO was appointed. We have summoned and perused the original enquiry 11 O.A 1881/1997 file. A bare perusal of enquiry proceedings dated 27.09.1993, would reveal that summary of allegations and other documents were prepared and summons were issued to the applicant, as he was running absent. As per proceedings dated 01.09.1993/03.09.1993, summary of allegations and all related papers/documents were sent and served upon the applicant, but still he has not joined the DE. Again, notice was issued to call him. Thereafter, since the applicant did not join the proceeding, so order for initiating ex-parte proceedings were obtained by the EO from the competent officer. The applicant did not participate in the enquiry proceedings, despite service and statements of PW-1 to PW-4 were recorded by the EO. After following the due procedure, the charges were framed & were duly served and applicant was directed to submit his reply to the charge sheet within a period of 7 days by the EO, vide proceeding dated 12.09.1993.
25. Further, perusal of the enquiry file would reveal that the EO issued notices informing the applicant about the holding of DE, enclosing therewith summary of allegations and list of witnesses proposed to be relied upon by the department (page 5 of the file). This notice was duly received by the applicant on 28.08.1993 attested by HC Ram Phal Singh No.1429/PCR dated 29.08.1993.
26. Not only that, enquiry file shows that various notices were issued to the applicant by the Enquiry and Disciplinary Authorities at every relevant stage. Instead of reproducing each interim order of the enquiry file and in order to avoid the repetition, suffice it to say 12 O.A 1881/1997 that the EO and DA have issued requisite notices along with relevant documents to the applicant at every relevant stage, which were received by him, but surprisingly enough, he did not join/participate in the departmental proceedings despite acceptance of indicated notices. In that eventuality, it cannot possibly be saith that DE was held against the applicant without following due procedure, as contrary urged on his behalf.
27. Moreover, all the points now urged by learned counsel for the applicant were duly considered and negated by the AA in the impugned order dated 23.10.1996 (Annexure A-2), which, in substance, reads as under:-
"The main grounds taken by the appellant in his (sc) appeal against the impugned order of his dismissal from service are that the charges against him are vague, uncertain and do not mention the details of the allegation; that the enquiry against the appellant has been conducted ex-parte and the enquiry officer has not followed the procedure as prescribed in the Delhi Police (Punishment & Appeal) Rules, 1980; that the principles of natural justice have been violated by enquiry office in conducting the enquiry and submitting his report; that the enquiry officer has gone beyond his jurisdiction in farming the charge against him, that he was not given opportunity to cross-examine the prosecution witness, that the appellant was not supplied with the copies of the charge; that the enquiry report submitted by the enquiry officer to the disciplinary authority was illegal, unjust, baseless and based on evidence, that good number of days of leave of the kind due; that he had submitted medical sickness certificates which were not considered by the Enquiry Officer and disciplinary authority and the penalty of dismissal imposed on him is disproportionate to his alleged misconduct.
The undersigned has gone through carefully the evidence on record and the facts and circumstances of the case. It is observed form the record that the charge against the appellant was not vague and uncertain. The details of the allegations are clearly mentioned and it is quite clear that the appellant was being proceeded against departmentally on grounds for his wilful (sic) and unauthorized absence from duty. It is clear from the charge framed against him which is to the following effect:-
"I Raj Laxmi, Inspr./PCR charge you that on 24.05.93 you Const. Surender Pal No.3000/PCR (PIS No.28824163) was detailed for reserve duty at Rose Bud/ PCR from 8 AM to 2 PM. But you did not report for duty thus you were marked absent vide DD No.9-B dt. 24.05.93 Rose Bud-PCR. An absentee notice vide No.1292/Rose Bud-PCR dt. 16.06.93 was sent at your residential address i.e. Vill. & PO Nizam Pur, PS Kanjhwala, Delhi Throg (through) HC Ram Phal No.1429/PCR the said notice was received by you on 28.06.93 against your proper receipt. But you did not bother to resume your duty or send any information to the Deptt. about your whereabouts. You are still running absent wilfully(sic)/ unauthorizedly.13 O.A 1881/1997
Your XXXXX record shows that you absented yourself from duty on 43 occasions and did not improve yourself although XXXXX major/minor punishments were inflicted upon you on the same grounds. You rather proved yourself incorrigible type of Const. and remained absent from duty w.e.f. 24.05.93.
The above act on your part amounts to gross misconduct, carelessness and remissness in discharge of your official duties which renders you liable to be dealt with departmentally u/s 21 of Delhi Police Act 1978.
You Const. Surender Pal No.3000/PCR have not attended the DE proceedings despite repeated notices. Your reply in this regard if any may be submitted to the undersigned within 7 days otherwise departmental action will be taken on ex-parte basis."
It is further observed from the record that the departmental enquiry against the appellant has been conducted in accordance with the requirements of Delhi Police (Punishment & Appeal) Rules, 1980. Despite being summoned by the Enquiry Officer to join the enquiry, the appellant failed to do so. He did not also send any intimation furnishing any valid reason for his not doing so and in the facts and circumstances of the case, the Enquiry officer was constrained to seek order of the disciplinary authority to conduct an ex-parte departmental enquiry. The record does not disclose violation of principles of natural justice is that conducting of ex-parte enquiry and submission of report was necessitated by the conduct of the appellant himself in that he failed to join the departmental enquiry without any valid reasons despite being summoned to join the enquiry. The enquiry officer has not gone beyond his jurisdiction in framing the charge for his wilful (sic) unauthorized absence from duty and the previous record of unauthorized absence from duty of the appellant has also been taken into consideration which is permissible under the relevant rule/law. Since the appellant failed to join the enquiry without any valid reason and the departmental enquiry was held ex-parte, therefore, the question of cross-examination of witnesses could not have been feasible. The contention of the appellant that he was not supplied with the copies of the charge is false as the records disclose that the appellant received the charge under view of the foregoing discussion of evidence, that enquiry report submitted by the enquiry officer was illegal, unjust and baseless and based on no evidence. As regards the grounds relating to leave being available to the credit of the appellant and the non-granting of leave by the disciplinary authority, every police personnel is aware that he has XXXX apply for leave and if the applicant for leave XXXXXXX grounds of sickness, the applications has to be supported by proper medical certificate. Records show that XXXXX appellant has not taken any such steps which he was required to take as per the requirement of relevant (sic) departmental rules/ instructions. No medical certificate were submitted as per record by the appellant and this is even admitted by him in the Orderly Room before the undersigned as stated above. As per record, the appellant has been wilfully (sic) absenting himself from duty unauthorizedly on numerous occasions earlier also as per details in the charge which has not been rebutted by the appellant. The disciplinary authority after consideration of the enquiry report and the facts and circumstances of the case has passed the impugned order of dismissal of the appellant from service assigning reasons referred to above. The undersigned as Appellate Authority is in agreement with the reasons assigned by the disciplinary authority & finds the appellant unfit to be retained in a disciplined force like police. Accordingly, the appeal has no merit and the same is hereby rejected.
Let the appellant be so informed."
28. Likewise, the next argument of learned counsel that, since the applicant was reinstated in service in pursuance of order (Annexure A-11) of this Tribunal w.e.f. 17.09.1993 and satisfactorily worked for 14 O.A 1881/1997 about 10 years, so a lenient view in the matter of awarding punishment be taken, again cannot be accepted. It is not a matter of dispute that the applicant remained wilfully and unauthorisedly absent from his duty without intimating the department. Even he did not participate in the enquiry proceedings despite receipt of various notices, as indicated hereinabove. Not only that, he earlier remained absent on 43 occasions.
29. What cannot possibly be disputed herein that wilful absence from duty by a Government servant, is a serious misconduct. The Hon'ble Apex Court in the case of Mithilesh Singh Vs. Vs. U.O.I. & Others AIR 2003 SC 1724 has ruled that absence from duty without prior intimation is a grave offence warranting removal from service. Similarly, the Hon'ble Supreme Court in the case of State of U.P. and Others Vs. Ashok Kumar Singh (1996) 1 SCC 302, held that absence of the respondent from duty would amount to grave misconduct and there was no justification for the High Court to interfere with the punishment holding that the punishment was not commensurate with the gravity of the charge.
30. Meaning thereby, the EO has evaluated the evidence on record, and after following the procedure of enquiry, concluded that charge framed against the applicant was fully proved beyond any reasonable doubt. The DA and AA have rightly accepted and appreciated the report of EO in the right perspective and duly considered the issues raised before them by the applicant.
31. Moreover, the jurisdiction of judicial review of this Tribunal in such disciplinary matters is very limited. The Hon'ble Apex Court 15 O.A 1881/1997 while considering the jurisdiction of judicial review and rule of evidence in the case of B.C. Chaturvedi Vs. U.O.I. & Others AIR 1996 SC 484 has ruled as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
32. Sequelly, the Hon'ble Apex Court in the case of K.L. Shinde v. State of Mysore, (1976) 3 SCC 76, having considered the scope 16 O.A 1881/1997 of jurisdiction of this Tribunal in appreciation of evidence has ruled as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re- examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross- examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and 17 O.A 1881/1997 he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
33. Therefore, taking into consideration the material and evidence on record and the legal position, as discussed herein above, we are of the considered opinion that the EO has correctly evaluated the evidence. Thereafter, the DA has rightly imposed the punishment of dismissal from service, which too was upheld by the Appellate Authority by recording cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. Hence, no interference is warranted in this case by this Tribunal.
34. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
35. In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the instant OA deserves to be and is hereby dismissed as such, in the obtaining circumstances of the case. However, the parties are left to bear their own costs.
(V.N. GAUR) (JUSTICE M.S. SULLAR) MEMBER (A) MEMBER (J) Rakesh