Central Administrative Tribunal - Delhi
Yahia Khan vs Comm. Of Police on 15 July, 2025
(OA No.2571-2018)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2571/2018
Reserved on: 04.07.2025
Pronounced on:15.07.2025
Hon'ble Mr. R N Singh, Member (J)
Hon'ble Mr.Sanjeeva Kumar, Member (A)
Yahia Khan, Age-49+ years,
S/o Sh. Abdul Rahman,
R/o-Village-Zamal Garh, PO-Zamal Garh,
Distt. Gurgaon, Haryana. ...Applicant
(By Advocate: Mr.Sachin Chauhan)
Versus
1. Govt. of NCTD through
the Chief Secretary,
Govt. of NCTD,
Naya Sachivalaya, Delhi.
2. The Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi.
3. The Spl. Commissioner of Police,
Western Range through
the Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi
4. The Addl. Dy. Commissioner of Police,
South West District, New Delhi
Through the Commissioner of Police,
Police Headquarters, I.P. Estate,
M.S.O. Building, New Delhi
...Respondents
(By Advoate: Mr.Sanjeev Yadav)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
"8.1 To quash and set aside the impugned order dated 10.02.2017 whereby the extreme punishment i.e. dismissal from service is being imposed upon the applicant and order dated 6.3.18 whereby statutory appeal of the applicant has been rejected and to further direct the respondents that applicant be reinstate back in (OA No.2571-2018) (2) service with all consequential benefits including seniority and promotion and pay and allowances.
8.2 To set aside the findings of the Enquiry Officer dated 18.6.16 forwarded vide letter dated 30.6.16.
Or/and Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant."
2. The facts of the case, as gleaned from the OA, are that the applicant was appointed as Constable in Delhi Police in the year 1991 and he is the sole bread earner in his family and has got a family to support which consists of house wife, 4 sons (all are studying) and 3 daughters. The present employment is only source of income for applicant and his family.
3. It is submitted that the applicant was dealt departmentally on the allegation of remaining absent from duty un-authorisedly and willfully vide order dated 6.10.2015. The allegations are reproduced are as under:
"That while posted in 3rd Bn. DAP, he absented himself willfully, deliberately and unauthorisedly on the following occasions without any prior permission or intimation of the competent disregard & authority violation of in utter standing instructions containing in SO No.111 and CCS (eave) Rules, 1972. The allegation in detail is as under:-
1. That while posted at Central Jail/rd bn. DAP, he proceeded on 4+2 days casual leave w.e.f. 02.10.2014. He was required, to report on 08.10.2014 at 12 Noon but he did not turn up. Thus, he was marked absent vide DD No.25-A dated 08.10.2014, Central Jail. During the absence period, the following absentee notices were sent at his residence with the direction to resume his duty at once failing which disciplinary action will be taken against him and in directed Officer, Haryana. to of illness, case report to he was Chief Medical Nuh, Hospital, Govt. Meewat, Haryana.
S. No. Absentee Remarks
Notice No. &
date
1. 19779- A copy of the absentee notice was
82/ASIP sent at the residence of the
(OA No.2571-2018)
(3)
(AC)/3rd Bn. delinquent Const. through Ct.
DAP dated Vikram, No. 2660/DAP and the
05.11.2014 same was served upon him under
his proper signature.
2. 22374- A copy of the absentee notice was
77/ASIP sent at the residence of the
rd
(AC)/3 Bn. delinquent Const. through Ct.
DAP dated Naresh Kumar, No.7837/DAP and
17.12.2014. the same was served upon him
under his proper signature.
He was also directed to report at DDU Hospital for re-medical examination vide letter No. 21265-67/ASIP/AC/3rd Bn. DAP dated 28.11.2014. He did not report to medical authority for second medical opinion/re-medical examination. He resumed his duty on 11.02.2015 vide DD No. 29-A, Central Jail after absenting himself for a period of 126 days, 03 hours and 50 minutes willfully and unauthorizedly.
2. That he proceeded on 3+2 days casual leave w.e.f. 20.04.2015. He was required to report on 2.04.15 after availing casual leave but he sent information (through FAX) regarding 05 days medical rest advised by doctor which was permitted by the competent authority. On 28.04.2015, he again informed (through FAX) regarding 03 days medical rest advised by doctor but the same was not permitted. Thus, he was marked absent vide DD No. 97-B dated 28.04.2015 VPL. During the absence period, he following absentee notices were sent at his residence with the direction to resume his duty at once failing which disciplinary action will be taken against him and in case of illness, he was directed to report to Chief Medical Officer, Govt.
Hospital, Nuh, Mewat, Haryana:-
S. No. Absentee Notice Remarks
No. & date
1. 5615-18.ASIP A copy of the absentee notice
(AC)/3rd Bn. DAP was sent at the residence of
dated the delinquent Const. through
15.05.2015 Ct. Noor Mohd. No. 7573/DAP
and the same was served upon
him under his proper signature.
2. 8479-82/ASIP A copy of the absentee notice
rd
(AC)/3 Bn. DAP was sent at the residence of
dated 15.7.2015 the delinquent Const. through Ct. Noor Mohd. No. 7573/DAP and the same was served upon him under his proper signature.
3. 9999- A copy of the absentee notice 10002/ASIP was sent at the residence of (AC)/3rd Bn. DAP the delinquent ASI Nand Singh, dated No.243/OD and the same was 20.08.2015 served upon him under his proper signature.
Despite issuance of above absentee notices, neither he reported to any of the medical authority for second medical opinion nor (OA No.2571-2018) (4) resumed his duty. However, he resumed his duty on 31.12.2015 vide DD No. 37-A VPL/III Bn. DAP, after absenting himself for a period of 248 days i.e. from 28.04.2015 to 31.12.2015.
His/past absence period also shows that he is a habitual absentee and had absented himself from duty for a period of about 2642 days, 10 hours and 55 minutes on 22 occasions earlier and failed to mend his ways despite awarding of several punishments."
4. It is further submitted that the applicant was given summary of allegation along with list of witnesses and list of documents to be relied by the Enquiry Officer (EO). The applicant being in the rank of Constable at the lowest ladder of police hierarchy had no understanding as to how the departmental enquiry is faced and the enquiry officer right from the very beginning misguided him. The EO even advised the applicant not to engage a defence assistant and kept on promising that he would ensure that a punishment more than a censure is not awarded. The applicant did not know of the intricacies and complicacies of departmental enquiry. The applicant had fallen prey to EO's trick to shorten the procedure of departmental enquiry. It was he who had goaded the applicant to mention 'yes' in the column where it was asked whether applicant admits to the guilt. The same fact is being established as subsequent to the charge being framed the applicant presented the 3 defense witnesses and in his defense statement admitted the fact of being absent but well supported by the reason for not able to attend the duty. Thus clearly establishing that applicant was denying the allegation of unauthorized and willful absence. The applicant did not plead guilty of the charges and he produced the 3 Defense Witnesses in D.E. and submitted the defense statement in which applicant had made submission that he was sick during the absence period.
5. It is stated that EO vide its report dated 18.06.2016, forwarded on 30.06.2016 without considering the submissions and pleas made within the body of defense statement, proved the charge against the applicant, thus causing severe prejudice to him. The applicant made a reply to the findings of the EO. The disciplinary authority passed an order dated 10.02.2017 whereby the extreme punishment, i.e. dismissal from service has been imposed upon the applicant. The order of disciplinary authority fails to consider the specific submission (OA No.2571-2018) (5) of the applicant thus making the order as non-speaking and bald. Thereafter, the applicant made a statutory appeal dated 27.02.2017 against the order of disciplinary authority and the appellate authority vide order dated 06.03.2018 rejected the appeal of the applicant without considering the submissions and pleas of the applicant made within the body of the statutory appeal of the applicant by an absolute non-speaking and mechanical order thus causing great prejudice to the applicant. The appellate authority does not deal with any of submissions and pleas made within the body of statutory appeal and rejected the statutory appeal of applicant by an absolute non-speaking and mechanical order thus making the order of appellate authority as bad in law.
6. The respondents in their counter reply have submitted that a departmental enquiry initiated against the applicant under the provision of Delhi Police (Punishment & Appeal) Rules, 1980 vide order dated 06.10.2015 as he absented himself willfully, deliberately and unauthorisedly on the following occasions without any prior permission or intimation of the competent authority in utter disregard & violation of standing instructions containing in SO No. 111 and CCS (Leave) Rules, 1972.
7. It is submitted that while posted at Central Jail/3rd Bn. DAP, the applicant proceeded on 4+2 days casual leave w.e.f. 02.10.2014. He was required to report on 08.10.2014 at 12 Noon but he did not turn up. Thus, he was marked absent vide DD No.25-A dated 08.10.2014. During the absence period, absentee notices were sent at his residence with the direction to resume his duty at once failing which disciplinary action will be taken against him and in case of illness, he was directed to report to Chief Medical Officer, Govt. Hospital, Noh, Meewat, Haryana.
8. It is further submitted that the DE was entrusted to Inspector Surender Singh Duggal, Inspector IIIrd Bn. DAP for conducting the same on day-to-day basis and to submit his finding expeditiously. The E.O. prepared the Summary of Allegations, List of Witnesses and list of relied upon documents which were served upon the delinquent Constable on 14.12.2015. In response, the delinquent filed his reply against the summary of allegations wherein he admitted the allegations leveled against him. As the delinquent admitted the (OA No.2571-2018) (6) allegations, the EO prepared the charge and the same was got approved from disciplinary authority and was served upon the delinquent on 23.03.2016. This time, the delinquent Constable did not plead guilty of the charge and he gave a request to allow him to produce his defence witnesses. Accordingly, the EO examined 3 defence witnesses. The delinquent Constable submitted his written defence statement as well wherein he admitted the lapse on his part but he claimed that he was sick during the absence period. Thereafter, the E.O. submitted his findings on 18.06.2016 concluding therein that the charge leveled against the delinquent Constable stands proved. At this stage, the delinquent was transferred from 3rd Bn. DAP to South- West Distt. vide order dated 26.06.2015. Consequent upon which, the instant DE was transferred to South-West Distt. vide memo dated 21.06.2016 for further course of action. After scrutiny of DE file and tentatively, agreeing with the findings of the E.O., a copy of the findings of the E.O. was served upon the delinquent Constable vide order dated 30.06.2016 with the direction to submit his representation, if any, against the findings of the E.O. within 15 days from the date of its receipt, failing which it will be presumed that he has nothing to say in his defence and the matter will be decided ex- parte on its merits. The delinquent Constable received the finding of E.O. on 08.08.2016 and submitted his representation against the findings of the E.O. on 22.08.2016 after repeated reminders to him. In his representation, he mainly made a submission. The submissions so made and the consideration of the same by respondents are as follows:
(1) The enquiry officer has completely overlooked the versions of DWs who are the witness of his medical condition.
The plea taken by the delinquent has no weight because the defence witnesses are police officials of department who went to the native village of delinquent to serve upon the absentee notices to him. The versions of defence witnesses could not support the plea of the delinquent. The defence witnesses only deposed what the delinquent Constable and his neighbours told them during the serving of absentee notices.
(2) Regarding his re-medical at DDU Hospital, the order of senior officers was also to be complied with the CHM/BHM and Company Commander. They should get him medically examined before deputing him on duty.
(OA No.2571-2018) (7) The plea taken by the delinquent is baseless and not tenable as the delinquent was directed to report at DDU Hospital, Delhi as well as Civil Hospital, Nooh, Distt. Mewat, Haryana but he did not report to the hospital on both occasions which is clear violation of orders of senior officers.
The Disciplinary Authority thus held that after carefully gone through the statement of PWs, Charge served upon the delinquent Const., Defense statement, findings of the E.O., representation of the delinquent Ct. and other material brought on DE file found the applicant guilty. He further noted that for the sake of natural justice, applicant was also directed to appear in OR on 09.09.2016 & 25.10.16 but he failed to appear in OR on both the occasions. Furthermore, it revealed that the delinquent constable is again running absent from government duties since 16.07.2016. This careless attitude of delinquent clearly shows that he is habitual absentee and has no sense of responsibility towards duty assigned to him. The strength of a force lies in its numbers and discipline. Absenteeism in police force is a serious matter as it not only shows a superficial number in strength but also brings indiscipline. Willful and unauthorized absence, if taken leniently, encourages others in the discipline force to follow the suit. Apart from it, unauthorized absence manifests lack of devotion to duty, carelessness and irresponsible attitude. Absence from duty is gross misconduct. This is a blatant violation of CCS (Leave) Rule 1972 and S.O. 111 of Delhi Police.
Considering all the facts and circumstances of the case, the then Addí. DCP/SWD did not see any other penalty, which can be awarded to such an incorrigible type of person. Therefore, agreeing with the finding of the Enquiry Officer and also considering all facts and circumstances of the case, the then Addl. Dy. Commissioner of Police-I, South-West Distt., New Delhi, dismissed the delinquent Const. Yahiya Khan, No. 2404/DAP (now 642/SW) (PIS No. 28910334) from the service with immediate effect V/O No 966-1015/HAP/SWD(P-II), dt. 10/02/2017. His above mentioned absence period was also decided as period 'Not Spent on Duty' for all intents and purposes on the principal of 'No Work No Pay' and the same is not regularized in any manner. Another departmental enquiry which had been approved by the disciplinary authority against Ct. Yahiya Khan, No. 642/SW (PIS No. 28910334) on his unauthorized absence w.e.f. 9.6.2016, was kept in abeyance. If he is reinstated in service, the same was to be re-opened.
9. The applicant had also filed appeal against the aforesaid order to the appellate authority, which was considered and rejected vide order dated 06.03.2018.
(OA No.2571-2018) (8)
10. We have heard both the parties and also carefully gone through the pleadings, including the counter reply and the rejoinder.
11. The submissions made by the learned counsel for the applicant in the OA as well as during the arguments include several grounds in support of the claim of the applicant which are as follows:
(i) The impugned order imposing the punishment dismissal from service dated 10.02.2017 and the order dated 06.03.2018 disposing of the statutory appeal have not taken into account the submissions and pleas of the applicant.
(ii) The findings of the EO dated 18.06.2016 forwarded vide letter dated 30.06.2016 are illegal, arbitrary and malafide.
(iii) The admission of the applicant being absent from duty due to illness cannot be taken as admission of the alleged misconduct and therefore it is wrong and illegal on the part of EO to proceed in DE as if the applicant has admitted the charges.
(iv) The defense of the applicant is supported by the deposition of 3 Defense Witnesses but the same has been rejected arbitrarily.
(v) The illness of the applicant which clearly established from various medical certificates furnished by him has entirely been ignored by the EO.
(vi) The EO has mentioned about previous record of the applicant which runs through the entire service period of about 25 years and all the previous absence matters have been duly considered and the disciplinary authority had accepted the applicant's plea and treated it to be as sanctioned leave. As such, this cannot be for imputation of any misconduct merely because the applicant could not get himself subjected to second medical examination during the period of illness, it cannot be construed that the applicant was not ill. Moreover, the illness of the applicant was of such nature that he could not reach the hospital as assigned for second medical opinion but the applicant on joining back of duty was always open for second medical examination.
(OA No.2571-2018) (9)
(vii) As the applicant being medically unfit was unable to attend the duties then in such circumstances the finding of the E.O. and other authorities that he was absent from duty unauthorizedly and willfully is a perverse and arbitrary act.
12. In support of the aforesaid contentions, learned counsel for the applicant places reliance on the judgment of Hon'ble Delhi High Court in WPC No.6831-2011 titled GNCTD vs. Sunil Tanwar decided on 23.07.2012 whereby it was clearly held that the absence of the respondent was not willful but there were compelling circumstances beyond the control of the respondent. In this case, the Hon'ble High Court concluded that the absence of the respondent was not willful and it cannot construe any misconduct. Resultantly, the respondent was reinstated setting aside his order of removal.
13. Reliance is also placed on the judgment of the Tribunal in case of Sohan Lal vs. UOI & Ors. in OA No.2388/2003 decided on 18.01.2006 wherein it was held that once a government servant tenders medical certificate issued by an authorized medical authority, the quasi judicial authority on administrative side is not an expert body either to comment about reliability or genuineness of the certificate. In cases of doubt, the competent authority can verify the genuineness of the medical certificate by sending the concerned person for medical examination before a medical authority for second opinion.
14. The applicant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab vs. Mohinder Singh 2005 Vol.12 SCC 182 wherein the Apex Court interfered on the point of proportionality of punishment and the delinquent official being absent from duty for a period of 5½ months and being inflicted with the extreme punishment of dismissal which was converted to compulsory retirement on account of 23 years of service was released by the Hon'ble Apex Court.
15. Learned counsel for the respondents through their counter reply as well as arguments during the hearing have reiterated that the applicant despite issuance of absentee notices never reported to any of the medical authority for second opinion and his past absence period also shows that he is a habitual absentee. Accordingly, the applicant (OA No.2571-2018) (10) was dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980 by following due procedure.
16. Our attention is also drawn to the proforma of questionnaire to be filed regarding admission or denial of the allegations in consonance with the relevant provision of Delhi Police (Punishment & Appeal) Rules, 1980 wherein the applicant clearly admitted the allegations. We have gone through the said proforma which we reproduce:
"PROFORMA OF QUESTIONNARIRE TO BE FILLED REGARDING ADMISSION OR DENIAL OF THE ALLEGATIONS.
STATEMENT OF CT. Yahiya Khan 2404/DAP Q.No.1 Do you admit the allegations mentioned in the summary of allegations served upon you on 14.12.15.
Ans. Yes
Q.No.2 Do you need additional documents in your defence.
If so, furnish the list mentioning relevancy and custodial of the documents.
Ans. No
Q.No.3 Do you want to engage a defence assistant? If so,
submit application along with written consent of the defence assistant indicating his/her occupation etc. Ans. No (Signature of delinquent (Signature of Presenting Officer) (Signature of Enquiry Officer) Date Date Date"
17. We have also seen the relevant provision of Delhi Police (Punishment & Appeal) Rules, 1980, as contained in Rule 16 captioned Procedure in departmental enquiries which reads as follows:
"16. Procedure in departmental enquiries- The following procedure shall be observed in all departmental enquiries against police officers of subordinate rank where rank facie the misconduct is such that, if proved, it is likely to result in a major punishment being awarded to the accused officer :
(i) A police officer accused of misconduct shall be required to appear before the disciplinary authority, of such Enquiry Officer as may be appointed by the disciplinary authority. The Enquiry Officer shall prepare a statement summarising the misconduct alleged against the accused officer in such a manner as to give full notice to him of the circumstances in regard to which evidence is to be regarded. Lists of prosecution witnesses together with brief details of the evidence to be led by them and (OA No.2571-2018) (11) the documents to be relied upon for prosecution shall be attached to the summary of misconduct. A copy of the summary of misconduct and the lists of prosecution will be given to the defaulter free of charge. The contents of the summary arid other documents shall be explained to him. He shall be required to submit to the enquiry officer a written report within 7 days indicating whether he admits the allegations and if not, whether he wants to produce defence evidence to refute the allegations against him.
(ii) If the accused police officer after receiving the summary of allegations, admits the misconduct alleged against him, the enquiry officer may proceed forthwith to frame charge, record the accused officer's pleas and any statement he may wish to make and then pass a final order after observing the procedure laid down in Rule 15 (xii) below if it is within his power to do so.
Alternatively the finding in duplicate shall be forwarded to the officer empowered to decide the case.
(iii) If the accused police of officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of the accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, inconvenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witnesses concerned. The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to elucidating the facts referred to in the statements of documents thus brought on record.
(iv) When the evidence in support of the allegations has been recorded the Enquiry Officer shall-
(a) If he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him or recommended his discharge to the Deputy Commissioner of Police or other officer, who may be so empowered or,
(b) Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.
(OA No.2571-2018) (12)
(v) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time, not exceeding two working days, to prepare a list of such witnesses together with a summary of the facts they will testify and to produce them at his expense in 10 days. The enquiry officer is empowered to refuse to hear any witnesses whose evidence he considers to be irrelevant or unnecessary in regard to the specific charge. He shall record the statements of those witnesses whom he decides to admit in the presence of the accused officer who shall be allowed to address question to them, the answers to which shall be recorded; provided that the enquiry officer may cause to be recorded by any other Police Officer superior in rank to the accused officer the statements of a witness whose presence cannot be secured without delay, expenses or inconvenience and may bring such statements on record. When such a procedure is adopted, the accused officer may be allowed to draw up a list of questions he wishes to be answered by such witnesses. The enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer and he will be allowed to take notes.
(vi) The accused officer shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official documents as he may specify, provided that such permission may be refused for reasons to be recorded in writing, if in the opinion of the enquiry officer such records are not relevant for the purpose or against the public interest to allow him access thereto. The latest orders of the Government shall be applicable with regard to the charging of copying fees, etc.
(vii) At the end of the defence evidence or if the Enquiry Officer so directs, at an earlier stage after the framing of charge the accused officer^shall be required to submit his own various of facts. He may file a written statement for which he may be given a week's time, but he shall be bound to answer orally all questions arising out of the charge, the recorded evidence, his own written statement or any other relevant matter, within the enquiry officer may deem fit to ask.
(viii) After the defence evidence has been recorded and after the accused officer has submitted his final statement, the Enquiry Officer may examine any other witness to be called "Court witness" whose testimony he considers necessary for clarifying certain facts not already covered by the evidence brought on record in the presence of the accused officer who shall be permitted to cross-examine all such witnesses and then to make supplementary final defence statement, if any, in case he so desires.
(ix) The Enquiry Officer shall then proceed to record the findings. He shall pass orders of acquittal or punishment if himself empowered to do so, on the basis of evaluation of evidence. If the proposes to punish the defaulter he shall follow the procedure as laid down in Rule 16(xii). If not so empowered he shall forward the case with his findings (in duplicate) on each of the charges together with the reasons therefor, to the officer (OA No.2571-2018) (13) having the necessary powers. If the enquiry establishes charges different from those originally framed, he may record finding on such charges, provided that findings on such charges shall be recorded only if the accused officer has admitted the facts constituting them or has had an opportunity of defending himself, against them.
(x) On receipt of the Enquiry Officer's report the disciplinary authority shall consider the record of the inquiry and pass his orders on the inquiry on each charge. If in the opinion of the disciplinary authority, some important evidence having a bearing on the charge has not been recorded or brought on the file he may record the evidence himself or sent back the enquiry to the same or some other enquiry officer, according to the circumstances of the case for such evidence to be duly recorded. If such an event, at the end of such supplementary enquiry, the accused officer shall again be given an opportunity to lead further defence, if he so desires, and to submit a supplementary statements, which he may wish to make.
(xi) If it is considered necessary to award a service 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.
(xii) If the disciplinary authority, having regard to his findings on the charges, is of the opinion that a major punishment is to be awarded, he shall-
(a) furnish to the accused officer free of charge a copy of the report of the Enquiry Officer, together with brief reasons for disagreement, if any, with the finding of the Enquiry Officer.
(b) Where the disciplinary authority is himself the Enquiry Officer, a statement of his own findings, and
(c) If the disciplinary authority, having regard to its finding on all or any of the charges and on the basis of the evidence adduced during the enquiry is of the opinion that any of the penalties specified in rule 5 (i to vii) should be imposed on the Police Officer, it shall make an order imposing such penalty and it shall not be necessary to give the Police Officer any opportunity of making representation on the penalty proposed to be imposed."
the accused officer may be allowed to draw up a list of questions he wishes to be answered by such witnesses. The enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements shall also be read over to the accused officer and he will be allowed to take notes.
18. As evident from sub para (v) of the said rules, once the applicant had stated the defence witnesses, it was mandatory for the enquiry officer to allow the delinquent official to draw up a list of questions he wishes to be answered by such witnesses. The provision also entails (OA No.2571-2018) (14) that the enquiry officer shall also frame questions which he may wish to put to the witnesses to clear ambiguities or to test their veracity. Such statements were to be read over to the accused officer and he was to be allowed to take notes. But in the instant case, the enquiry officer completely avoided the version of three defence witnesses who had gone to the applicant's native village to serve absentee notices. We have taken a close look at the statements made by three witnesses, which read as follows:
"1. Statement.of.CW-1 Statement of ASt Nand Singh No.243/OD, 3 rd Bn. DAP Vikas Puri Delhi.
Stated that he is posted in 3 Bn. DAP. He had received an enquiry and absentee notice in s/o Ct. Yahlya Khan No. 2404/DAP from BHM/office 3d Bn. On this he went to the native village of the above Ct. at V.P.O. Jamalgarh, Teshil Punhana, District Mewat (Haryana), where Ct. Yahiya Khan met him and he told about the absence of Ct. Yahiya Khan. Ct Yahiya Khan had told him that he is undergoing the treatment from psychiatric. He had recorded the statements of two neighbors of Ct. Yahiya Khan who also told him that Ct. Yahiya Khan is sick from long period. He had come to known that Ct. Yahiya Khan is not either running any kind of business or involved any political party. He had also enquired the from Police station Punhana about any criminal activities in r/o Ct. Yahiya Khăn bút họ criminal record were found there. He had also received the said report from the police station and handed over all the documents and report to BHM Office 3rd Bn.
2. Statement of DW-2 Statement of Ct Noor Mohd. No. 7573/DAP, 3 rd Bn. DAP Vikas Puri Delhi.
Stated that he is posted in 3d Bn. DAP. He had received absentee notice in o C. Yahlya Khan No. 24.04/DAP for the service from the BHM office. On this he went to the native village of the above Ct. at V.P.O. Jamalgarh, Teshil Punhana, District Mewat (Haryana), where Saddam s/o Ct. Yahiya Khan met him and he told that his father had gone outside for treatment as he is facing psychiatric problem. He had also enquired from the neighbors who told him that Ct. Yahiya Khan is suffering from psychiatric problem form a long time and he is undergoing treatment. There after he returned back to the VPL and reports were handed over to BHM office.
3. Statement of DW-3 Statement of ASi Karambir No. 648/1 3rd Bn. DAP Vikas Puri Delhi, Stated that he is posted in 3rd Bn. DAP, He had received an enquiry and absentee notice in to Ct. Yahiya Khan No. 2404/DAP (OA No.2571-2018) (15) from BHM/office 3d Bn. On this he went to the native village of the above Ct. at V.P.O. Jamalgarh, Teshil Punhana, District Mewat (Haryana). Where Ct. Yahiya Khan met him and he told him that he is now felling well and he will resume his duty after the advised/fitness of concerned doctor. He had recorded the statements of two neighbors of CL Yahiya Khan who also told him that Ct. Yahiya Khan is sick from long period. He ha come to known that Ct. Yahiya Khan is not either running any kind of business or involved any political party. He had also enquired the from Police station Punhana about any criminal activities in r/o Ct. Yahiya Khan but no criminal record were found there. He had also received the said report from the police station. Ct Yahiya Khan had handed over the copies of his medical papers and same medical papers along with report was handed over to BHM Office 3rd Bn.
After recording the statements of above defense witnesses, no other defense witnesses remained to be examined. Hence, the delinquent constable was directed to submit his defence statement against the charge which had did. In his defence statement he has again admitted the lapse on his part but he claimed to be sick during the absence period."
19. However, no credence to the aforesaid statements was given, and there is nothing to indicate that the procedure, as laid down in Rule 16 (v) of Delhi Police (Punishment & Appeal) Rules, 1980, was followed. On the other hand, it was held by the enquiry officer that the applicant had initially and partially admitted the allegation that several absentee notices were served upon him but he could not join the duty but the explanation of sickness and depression leading to such absence was not given due consideration. Though the enquiry officer admitted that the medical papers were submitted by the delinquent employee issued by various doctors of Government of Rajasthan but there is nothing to suggest whether any credence to this certificate was given by the enquiry officer. The submission of the defence witnesses, which clearly point out that the applicant was unwell, had simply been set aside stating that they are the police officials of this Battalion and version of defence witnesses could not support the plea of the applicant that he was under treatment for psychiatric problem. No importance was given to the statement made by the defence witnesses, though it clearly mentioned about the sickness of the applicant.
(OA No.2571-2018) (16)
20. The enquiry officer had discarded the evidence of defense witnesses on a flimsy ground that they are police officers. Surprisingly in the departmental enquiry there has been no discussion by the enquiry officer regarding the defense of the applicant and the same act is enough to vitiate the entire departmental enquiry. In fact, the enquiry officer as per the relevant provision of Delhi Police (Punishment & Appeal) Rules and as per the principles of natural justice was under obligation to deal with the defense that has been given by the applicant in defense statement as well as deposition made by the defense witnesses in the departmental enquiry. In the case of Union of India vs. G.Krishna, the Hon'ble High has held as follows:
"While appreciating the evidence, the entire legal defence has to be considered if the evidence only supporting the case of the department is taken into consideration and the other evidence which is equally supporting the case of the employee is omitted to be considered, it would amount to non application of the mind and biased attitude of the Enquiry Officer." The present case is a perfect example of not considering the defense of the applicant and further ignoring the evidence in the favour of the applicant thus vitiating the DE."
21. We also find some inaccuracy in the order of the disciplinary authority because the disciplinary authority endorsed the plea of the enquiry officer that the plea taken by the delinquent has no weight on the unsubstantial ground that the defence witnesses are police officials of the department who went to the native village of delinquent to serve upon the absentee notices to him. But it is evident from the deposition of DWs that the applicant was having some psychiatric problem. But such deposition has been found not worth taking into account. Further, it appears from the order of the disciplinary authority that during his re-medical examination at DDU Hospital, the applicant was to be accompanied by CHM/BHM and Company Commander to get him medically examined before deputing him on duty. There is no clarity as to why such officials failed to get the applicant medically examined before he joined his duty, if he (the applicant) did not report at DDU Hospital.
(OA No.2571-2018) (17)
22. We also find discrepancy in the impugned order of the disciplinary authority which states "I have carefully gone through the statement of PWs, Charge served upon the delinquent Constable, defence statement, findings of the E.O. representation of the delinquent Constable and other material brought on DE file."
23. However, despite the emphatic assertion that he carefully went through the statements of PWs, in the enquiry report, we do not find any reference of prosecution witnesses being examined or their statements being discussed. When the learned counsel for the respondents was confronted on this issue, he fairly admits that the no PW was named or listed or examined during the course of DE and disciplinary authority in the impugned order has erroneously mentioned it, because of a possible typographical error. However, to our mind, this is a case of non-application of mind wherein the disciplinary authority while passing the impugned order has mechanistically alluded to the statement of PWs which was never part of the enquiry.
24. We are conscious that the Tribunal has limited jurisdiction over judicial review. It is a settled position of service jurisprudence that the Courts and Tribunals cannot re-appreciate the evidence gathered during the course of domestic enquiry and further cannot act as an Appellate Authority but if the Disciplinary Authority came to a conclusion or finding which no reasonable person would ever reach based on the material on record and merely the fact that the respondent was absent from duty during certain periods does not ipso facto lead to the conclusion that the respondent was guilty of misconduct and that unless the absence is willful. It is trite to state that the Court/Tribunal may interfere with the finding of the Disciplinary Authority where that authority held proceedings against the delinquent officer in a manner inconsistent with the principles of natural justice or in violation of statutory rules prescribing the mode of conduct.
25. Evidently, in the present case the evidence recorded by the enquiry officer and the inferences drawn by him were at variance with the material and evidence on record and could be interfered with by the Tribunal on the ground of being perverse and suffering from patent error on the face of the record.
(OA No.2571-2018) (18)
26. Further, in the present case it is observed that although the respondent was absent from duty during certain periods it did not inescapably and inevitably lead to the conclusion that the respondent was guilty of misconduct.
27. In Krushnakant B. Parmar vs. Union of India & Anr.: 2012 (2) SLJ 19 (SC) the Supreme Court whilst deciding an appeal on unauthorized absence and misconduct observed as under:-
"16. The question whether "unauthorised absence from duty‟ amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the Disciplinary Authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."
28. Therefore we are of the view that the present departmental enquiry is vitiated as admittedly the enquiry officer in his findings has not at all dealt with the defence and submission of the applicant The applicant has come forward with the defence statement taking his defence and further has mentioned 3 DWs in the departmental enquiry but still there has been no discussion by the enquiry officer regarding the defence of the applicant. The disciplinary and the appellate authorities have also failed to take into account the same based on the submission and pleas taken by the applicant causing prejudice to him. Prejudice is also caused to the applicant in the light of erroneous statement in the impugned order of the disciplinary authority about the statement of PWs, which was in fact never made. What is surprising is that such error has also escaped the notice of appellate (OA No.2571-2018) (19) authority. Therefore, we find that that penalty imposed on the applicant is bad in law and it suffers from patent errors on the face of record. As such, the impugned orders deserve to be set aside. Accordingly, we pass the followed orders:
(i) The impugned orders dated 10.02.2017 and 06.03.2018 passed by the disciplinary and appellate authorities respectively are set aside along with the report of the enquiry officer dated 18.06.2016 forwarded vide letter dated 30.06.2016.
(ii) The applicant shall be reinstated in service and shall be entitled for all consequential benefits in accordance with relevant rules and instructions.
(iii) The respondents shall be at liberty to proceed with the disciplinary proceedings afresh, however, in accordance with law, if they are so advised.
(iv) The aforesaid directions will be complied with as expeditiously as possible and preferably within a period of eight (8) weeks from the date of receipt of certified copy of the order.
29. In view of aforesaid terms, the OA is allowed. No order as to costs.
(Sanjeeva Kumar) (R.N. Singh) Member (A) Member (J) /kdr/