Central Administrative Tribunal - Delhi
Vikram Singh vs Comm. Of Police on 9 August, 2016
1 OA No.1402/2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No. 1402/2013
Reserved On: 02.08.2016
Pronounced on:09/08/2016
Hon'ble Mr. Justice, M. S. Sullar, Member (J)
Hon'ble Shri V. N. Gaur, Member (A)
Vikram Singh
Aged about 36 years,
Ex. Ct. of Delhi Police,
PIS No. 28981598,
S/o. Sh. Jaswant Singh
R/o. VPO : Chandavas,
Distt-Rewari, Haryana. ....Applicant
(Argued by: Mr. Anil Singal, Advocate)
Versus
1. Govt. of NCT of Delhi through
Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. Joint Commissioner of Police,
Traffic, PHQ,
I.P. Estate, New Delhi.
3. D.C.P/Traffic (HQ),
PHQ,
I.P. Estate, New Delhi. ....Respondents
(By Advocate : Mr. Amit Anand)
ORDER
Justice M. S. Sullar, Member (J) The challenge in this Original Application (OA), instituted by applicant, Ct. Vikaram Singh, is to the impugned enquiry report dated 04.01.2010 (Annexure A-1) and order dated 22.02.2012 (Annexure A-2), whereby a penalty of dismissal from service was imposed on him by the Disciplinary 2 OA No.1402/2013 Authority (DA). He has also assailed the impugned order dated 11.01.2013 (Annexure A-3), vide which his appeal was dismissed by the Appellate Authority (AA) as well.
2. The crux of the facts and material, exposited from the record and relevant for deciding the instant OA, is that, applicant remained wilfully absent from his duty for a period of 4 years, 7 months, 21 days and 12 hours unauthorizedly. Thus, he was stated to have committed the grave misconduct, during the course of his employment.
3. As a consequence thereof, he was dealt with departmentally, under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter to be referred as "D.P. Rules"). A Departmental Enquiry (DE) was initiated against him and the Enquiry Officer (EO) was appointed, by the competent authority. The EO, after recording the evidence and following the due procedure of enquiry under the D.P. Rules, issued the following summary of allegation to the applicant:-
"It is alleged against Ct. Vikram Singh No. 3758-T (PIS No. 28981598) that while posted at IGI Circle was relieved on transfer to R.P. Bhawan in compliance of PHQ's transfer order No. 10492-516/P.Br./PHQ dated 15.06.2009 to make his final departure from RND vide DD No. 20/IGI Circle, dated 04.07.2004. But he did not report in RND and absented himself wilfully and unauthorisedly without any intimation. He reported at RND vide DD No. 46/RND on 26.02.2009 after absenting himself for a period of 04 years, 07 months, 21 days and 12 hours unauthorisedly, wilfully and without any intimation. On 06.04.2009, he was again relieved on transfer to R.P. Bhawan vide DD No. 36 but he did not report there and is still running absent. Two absentee notices were issued to him vide office No. 4929- 32/SIP-T(D-III) dated 13.05.2009 and No. 5343-46/SIP-T(D-III) dated 26.05.2009 with the directions to resume his duty. It was also directed that in case of illness, he will report to the Medical Superintendent, Civil Hospital for medical examination. Absentee notices were served upon his father Sh. Jaswant Singh on 22.05.2009 and 21.06.2009. His father informed that he had gone to join his duty on 10.05.2009. But, he neither reported for medical examination at Civil Hospital nor reported on duty and is running absent continuously in violation of CCS (Leave) Rules, 1965.3 OA No.1402/2013
The above act on the part of Ct. Vikarm Singh No.3758-T amounts to grave misconduct, negligence, carelessness and dereliction in the discharge of his official duties which render him liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980".
4. Agreeing with the findings of the EO, initially the DA imposed the penalty of dismissal from service on the applicant vide order dated 23.04.2010. The appeal filed by him against the order of DA, was also rejected by order dated 26.08.2010, by the AA.
5. Dissatisfied therewith, the applicant previously filed OA bearing No.4118/2010 on identical (Ditto) grounds, which he has pleaded in the instant OA. All pleas raised by the applicant in the earlier OA No.4118/2010 were negated. However, this Tribunal, set aside the order dated 26.08.2010 of the AA and remitted the matter to the DA only for a limited purpose to consider the quantum of punishment afresh, vide order dated 09.12.2011. The operative part of the order reads as under:-
"10. We have given due consideration to the submissions made by the learned counsel for applicant and we are of the view that it was not permissible for the disciplinary as well as the appellate authorities to take past conduct of the applicant whereby he remained absent on three different occasions without putting him to the notice and giving an opportunity to explain his position and thereafter considering his application, especially in the light of the instructions issued by the Govt. of India vide OM dated 26.8.1968, as referred to above and in the light of the mandate of Rule 16 (11) of Delhi Police (Punishment & Appeal) Rules, 1980. In this case the applicant has been awarded penalty of dismissal from service taking into consideration his past conduct, which has caused prejudice to him.
11. Accordingly, the present OA is disposed of and the impugned order dated 26.8.2010 (Annexure A-3) is quashed. Matter is remitted back to the disciplinary authority with a direction to consider the issue of quantum of punishment afresh without taking into consideration the past conduct of the applicant and pass appropriate order within a period of three months from the date of receipt of a copy of this order. No costs. awarded the indicated punishment to the applicant (Annexure A-2), which was upheld by the AA vide order (Annexure A-1).
6. In compliance of the order of the Tribunal, the DA reconsidered the matter and again imposed a penalty of 4 OA No.1402/2013 dismissal from service on the applicant vide impugned order dated 22.02.2012 (Annexure A-2).
7. The Appellate Authority, in compliance of the order dated 18.10.2012 in OA No.3549/2012 of this Tribunal, also dismissed the appeal of the applicant, vide impugned order dated 11.01.2013 (Annexure A-3).
8. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned enquiry report and orders, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985, on all the similar grounds taken in the previous OA.
9. The case set up by the applicant, in brief, in so far as relevant, is that, the applicant had informed the concerned duty officer about his illness, who asked him to produce the medical fitness certificates. In case the competent authority was not satisfied with the explanation put forth by the applicant, then he should have been subjected to second medical examination in accordance with Rule 19 (v) of Central Civil Services (Leave) Rules, 1972 [hereinafter to be referred as "CCS(Leave)Rules"). The medical record produced by the applicant was neither considered nor rejected by the EO nor by DA. The enquiry as well as finding of guilt, was vitiated in this regard.
10. According to the applicant, the authorities have failed to consider the fact that the applicant was ill and doctor advised him for medical rest. The authorities were stated to have violated the statutory rules and principles of natural justice. 5 OA No.1402/2013 The impugned enquiry proceedings and orders are bad in law. Even the punishment of dismissal was highly excessive, harsh and totally disproportionate to the alleged misconduct. The DA has ignored the young age, length of service, character and antecedents of the applicant, while dismissing him from service. The impugned orders were termed to be illegal, arbitrary, whimsical, without jurisdiction and against the principles of natural justice. On the basis of aforesaid grounds, the applicant has sought quashing of the enquiry report, as well as the impugned orders, in the manner indicated hereinabove.
11. The respondents refuted the claim of the applicant and filed their reply wherein, it was pleaded that he remained wilfully absent from his duty for 4 years, 7 months, 21 days and 12 hours unauthorizedly and without any intimation.
12. On 06.04.2009, he was again relieved on transfer to R.P. Bhawan vide DD No.36, but he did not report there and was running absent till the date of issue of dismissal order. Two absentee notices were also issued to him vide this office No.4929-32/SIP-T (D-III) dated 13.05.2009 and No.5343- 46/SIP-T (D-III) dated 26.05.2009 with clear directions to resume duty otherwise disciplinary action would be initiated. It was also directed that in case of illness, he should report to the Medical Superintendent of the nearest Civil Hospital for undergoing medical examination. The absentee notices were served upon his father Shri Jaswant Singh on 22.05.2009 and 21.06.2009. His father informed that, the applicant had gone to 6 OA No.1402/2013 resume his duty on 10.05.2009, but the applicant neither reported for medical examination at Civil Hospital, nor did he report and continue to remain absent unauthorizedly in violation of CCS (Leave) Rules.
13. According to the respondents, the EO has duly considered, analysed and scrutinized the following photostat copies of medical records produced by the applicant:-
Sl. No. Name of OPD Slip No. Date Medical Rest. Cause of illness Medical prescription Dispensary Bed Rest or etc.
1. P.H.C., M.C.D., 34750 8.9.04 8.9.04 to 5.10.04 Anxiety, Neurosis No medical rest. Only Mehrauli, Delhi & depression medicine for 04 No extension upto weeks 28.12.04
2. -do- -do- 28.12.04 28.12.04 to 25.1.05 -do- -do-
No extension upto 17.5.05
3. -do- -do- 17.05.05 17.5.05 to 12.6.05 -do- -do-
No extension upto
01.10.05
4. -do- -do- 1.10.05 1.10.05 to 30.10.05 -do- -do-
No extension upto
20.2.06
5. -do- -do- 20.02.06 20.02.06 to 20.03.06 -do- -do-
No extension upto
10.7.06
6. -do- -do- 10.7.06 10.7.06 to 7.8.06 -do- -do-
No extension upto
27.11.06
7. -do- -do- 27.11.06 27.11.06 to 26.12.06 -do- No medical rest.
No extension upto Medicine for 02
5.2.07 weeks.
8. PHC, MCD, 1829 6.2.07 06.02.07 to 12.2.07 Acute Febrile Medical rest for 01
Daulat Pur, Delhi illness week till 12.2.2007.
9. -do- -do- 13.2.07 13.2.07 to 19.03.07 Acute Viral Medical rest for 06
Hepatitis etc. weeks till 19.03.2007.
10. -do- -do- 20.03.07 20.03.07 to 19.04.07 -do- Medical rest for one
month upto
19.4.2007
11. -do- -do- 20.04.07 20.04.07 to 20.06.07 -do- 02 months medical
rest
12. -do- -do- 21.06.07 21.06.07 to 19.08.07 -do- 1½ months medical
(Tampered) rest
No record of broken period from 23.7.07 to 26.7.2007
13. -do- -do- 29.08.07 - Declared fit to resume duty.
Date seems to be tampered from 20.8.2007 to 29.08.2007 No record of broken period from 30.8.2007 to 8.6.2008
14. Arjun Hospital, 49/89/62-T 09.06.08 9.6.08 to 31.12.08 Anxiety, Neurosis Bed rest.
Rewari No record from 1.1.09 to 25.02.2009
14. The EO, completed the enquiry and concluded that the charges framed against the applicant stand duly proved beyond doubt. Concurring with the findings of the EO, the DA has 7 OA No.1402/2013 rightly passed the impugned punishment order and appeal was rightly dismissed by the AA.
15. Virtually acknowledging the factual matrix and reiterating the validity of the impugned orders, the respondents have stoutly denied all other allegations and grounds contained in the main OA and prayed for its dismissal.
16. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering 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.
17. Ex-facie, the main argument of learned counsel that there is no cogent evidence of wilful absence of the applicant on record, and since the medical prescriptions produced by him were not considered by the relevant authorities, so the impugned enquiry report and orders are arbitrary and illegal, is neither tenable nor the observation of the Hon'ble Calcutta High Court in case of Gour Gopal Debanath Vs. The State of West Bengal and Others 2004 (8) SLR 112 and of this Tribunal in case of HC Bishamber Singh Vs. Govt. of NCT of Delhi and Others in OA No.2448/2004 decided on 19.05.2005, are at all applicable to the facts of the present case.
18. In Gour Gopal Debanath's case (supra), the petitioner (therein) was ill. He applied for adjournment from time to time in the departmental enquiry. The last adjournment was granted on 28.09.2002. On that date, hearing was fixed, but the 8 OA No.1402/2013 petitioner did not turn up, rather sent his wife with an application for further adjournment supported by medical certificate. A registered medical practitioner issued certificate to the effect that he has been suffering from hypertension, so he was advised bed rest from 28.09.2002 for a period of 14 days. The EO disbelieved the certificate as to its genuineness, did not adjourn the enquiry and proceeded in the departmental proceedings ex-parte.
19. Sequelly, in HC Bishamber Singh's case (supra), the applicant had duly informed to his higher officer on telephone at 11.20 AM that he would be on leave because he is not feeling well. Information was duly recorded vide DD entry No.15 of 18.07.2002. On the same day, vide DD entry No.20 at 01.45 PM, it had been reported that the applicant had not turned up for duty. Subsequently, the applicant had submitted medical certificate.
20. On the peculiar facts and in the special circumstances of those cases, it was observed that the observation of the EO that certificate is procured one, without any further evidence, was held to be uncalled for. It was further observed that the medical certificate should have been considered, and Enquiry Officer, in all fairness, should have granted adjournment to the delinquent official (therein).
21. Possibly, no one can dispute with regard to the aforesaid observation, but the same would not come to the rescue of the applicant for the following reasons.
9 OA No.1402/2013
22. At the first instance, the applicant in the present case remained absent for a long period of 4 years, 07 months, 21 days and 12 hours. He neither informed the department nor sent any intimation or medical record. Even he did not join his duty despite the service of absentee notices, particularly when he participated in the DE proceedings. He did not appear before the doctor of concerned dispensary, despite specific direction by the competent authority in this regard, for the reason best known to him.
23. As is evident from the record that the applicant remained absent from duty for 4 years, 07 months, 21 days and 12 hours, and thus committed grave misconduct. The prosecution, in order to substantiate the charges framed against the accused, examined PW-1 Ct. Deepak Anand, PW-2 HC Gulazar Chand, PW-3 SI (Min) Hari Prakash and PW-4 ASI Jai Bhagwan, besides producing documentary evidence. The applicant did not cross- examine PW-1 & PW-3 and their statements remained unchallenged, whereas PW-2 & PW-4 were cross-examined by him, but no substantial material could be elicited in their cross- examination to dislodge their testimony.
24. On the contrary, the applicant in his defence has stated that while performing duty at IGIA Circle, he fell ill. Due to illness, he was feeling giddiness. Besides, due to weakness, he was suffering from epilepsy. He was taken to doctor by his family members and was admitted in the hospital for treatment. Due to illness, he was suffering from mental 10 OA No.1402/2013 tension, anxiety, neurosis and depression. He further stated that, he has enclosed the photocopies of the medical report and prescription statement. Due to his illness, he has not reported at R.P. Bhawan so far. He further requested that keeping in view his illness, leave may be deducted in lieu of medical rest. However, he did not prefer to produce any doctor or other witness or medical certificate from the civil hospital in support of his plea of illness. In this backdrop, the EO has rightly concluded that charges levelled against the applicant stand proved. Therefore, the contrary argument of the learned counsel that applicant has proved his plea of illness "stricto- sensu" deserves to be and is hereby repelled.
25. Agreeing with the findings of the EO, considering the material on record and after following the due procedure, the indicated penalty of dismissal from service was imposed on the applicant vide impugned order dated 22.02.2012 (Annexure A-2) by the DA. Not only that the AA has duly considered all the relevant factors and dismiss the appeal of the applicant, vide impugned order dated 11.01.2013 (Annexure A-3), which, in substance, is as under:-
"After examining the D.E. file on record and the scrutiny of medical examination papers, the disciplinary authority agreed with the findings of the Enquiry Officer and the charge levelled against the appellant was substantiated without any doubt. The appellant had absented himself from his official duties from 04.07.04 to 25.02.09 unauthorisedly, wilfully and without any prior intimation/permission from the competent authority, which is in violation of the provisions of CCS (Leave) Rules 1972 and instructions contained in S.O. No.111 of Delhi Police. The appellant was relieved on transfer of R.P. Bhawan vide DD No. 36/RND dated 6.4.2009, but he did not report there and remain absent. He also failed to submit the reply to the findings of the E.O. despite issuing reminders dated and 16.03.2010. The conduct of the appellant indicated that he was in the habit of absenting himself in utter disregard of the instructions/rules of the department in the manner which is unbecoming of a member of a uniformed organization. He had 11 OA No.1402/2013 deliberately misled the department by representing that he had reported for duty at R.P. Bhawan which was an obvious attempt to subvert/derail the departmental proceedings.
Wilful and unauthorized absence, if taken leniently, will not only encourage others in a disciplined force to follow suit and it will also destroy the whole fabric of discipline. Apart from it, unauthorized absence from duty manifests lack of devotion to duty.
In view of above facts and discussion, the disciplinary authority had dismissed the appellant from service and his period of absence from 4.7.2004 to 25.2.2009 and 6.4.2009 to till 23.4.2010 was decided as 'period spent on duty' for all intents and purposes vide order No.XVI/23/2009/3481-3525/HAP/T(D-I/HQ) dated 23.4.2010. The appellant received a copy of the order on 4.5.2010.
Aggrieved with the decision of the disciplinary authority, the appellant had filed an appeal to the Joint CP/Traffic/HQ, New Delhi which was considered and rejected vide order No. 348- 58/S.O./Jt.C.P./Traffic dated 26.08.2010. After rejection of his appeal, the applicant had filed an O.A No. 4118/2010 in the Hon'ble CAT against the orders of the disciplinary authority as well as the appellate authority. The Hon'ble Tribunal vide its order dated 09.12.2011 had allowed the O.A and remitted the matter back to the disciplinary authority with the direction to consider the issue of quantum of punishment afresh without taking into consideration the past conduct of the applicant and pass appropriate order within a period of three months. The disciplinary authority accordingly considered the matter afresh without taking into consideration the past conduct of the appellant and observed that the appellant should not be allowed to continue in service again and needs to be weeded out from the police force by way of dismissing from service. He did not see any reason to intervene in the punishment except dismissal from service awarded by his predecessor vide order No. 1168- 80/HAP-T (D-IV) dated 22.02.2012. Thereafter, the appellant had submitted an appeal before the appellant authority again, but the same could not be acceded to.
X X X I have carefully gone through the dismissal order, the Hon'ble Court's order, as well as submissions made in the appeal by the appellant and also heard him in O.R. on 02.01.2013. In his appeal, the appellant has taken main pleas that (i) the disciplinary authority did not take into consideration the information given by him to the concerned duty officer about his illness, (ii) neither he had got medically examined nor issued any absentee notice, (iii) the authenticity and genuineness of the medical certificates were not questioned by the disciplinary authority and (iv) when he was advised by the doctor for bed rest, how he could have got prior permission from the competent authority.
The grounds put-forth by the appellant are not tenable. Due procedure had been followed by the disciplinary authority in the departmental proceeding. The appellant was relieved on transfer from IGIA Circle to R.P. Bhawan on 04.07.2004 to make his final departure from Traffic Lines but he did not report at Traffic Lines and remained absent unauthorisedly till 26.02.2009. There was no information about his absence/illness till 26.02.2009. During the departmental proceedings, there was no evidence that he had informed the duty officer about his illness. As soon as his absence come to notice, the absentee notices were issued to him and he was asked to produce himself before medical superintendent, Civil Hospital for second medical opinion but he did not do so. The medical papers submitted by the appellant during departmental proceedings were carefully examined by the competent authority and found that the appellant had submitted medical papers only to cover up his absence period. The appellant was again relieved to report R.P. Bhawan on 06.04.2009 but he did not again join his duty and was running absence to the date of dismissal i.e 23.04.2010. He also 12 OA No.1402/2013 misled the department by giving written statement that he had resumed his duties in R. P. Bhawan on 16.03.2010.
After taking into consideration of all facts and circumstances of the case, relevant record on file and after hearing the appellant in person, I have come to the conclusion that the disciplinary authority has rightly awarded the punishment under appeal. Under the circumstances, I do not find any reason/ground to interfere with the punishment order passed by the disciplinary authority. Hence, the appeal is rejected."
26. Moreover, the respondents claimed that the photostat copies of the medical prescriptions of different dispensaries produced by the applicant and tabulated in their reply and reproduced in para 13 of this order, were considered by the relevant authorities.
27. A bare perusal of indicated photostat copies of medical prescriptions would reveal that the applicant was reportedly suffering from anxiety, neurosis, depression and viral Hepatitis. These photostat copies of prescriptions do not relate to the entire period of his absence. He has not produced any record of his illness of more than 2½ years. Even he was declared fit to resume duty by the PHC, MCD, Daulatpur, Delhi on 29.08.2007, but he did not report for duty although he participated in the departmental proceedings. Above all, it remains an unfolded mystery that a person who is suffering from anxiety, depression etc., can go to different dispensaries at a distance of 35 kms and, was unable to join duty or at least to inform his department. Moreover, in some of the prescriptions, no medical rest was advised to him. The applicant was residing at Rewari, and he had been purportedly visiting the MCD Dispensaries in Delhi located at Mehrauli and Daulatpur. It has come in evidence on record that, the absentee notices were duly 13 OA No.1402/2013 issued to him, but still he failed to join his duty and continued participating in the DE proceedings, for the reasons best known to him.
28. That means, the applicant has tried to misled the authorities by producing photostat copies of medical prescription of part of his absence period and has not produced the medical record of the entire period. The authenticity of these photostat copies of medical prescription, is very much doubtful, as he has not examined any doctor or any other person from the concerned dispensary to prove the medical record. In other words, the applicant has tried to create a false defence, which he has miserably failed to substantiate. In that eventuality, it cannot possibly be saith that the absence of the applicant was not wilful and the authorities have failed to consider this aspect of the matter, as contrary urged on his behalf.
29. Moreover, the applicant cannot claim illness leave as a matter of right, as contemplated under SO 111 and Rule 7 of the CCS (Leave) Rules, 1972 (hereinafter to be referred as "Leave Rules"). Besides Rule 7, Rule 19 (1)(ii) postulates that, in respect of a non-Gazetted Government servant, an application for leave on medical grounds shall be accompanied by a medical certificate Form 4 given by a CGHS doctor. According to Rule 25(2) of Leave Rules, the wilful absence from duty after the expiry of leave, renders a Government servant liable for 14 OA No.1402/2013 disciplinary action. Thus, the indicated argument of counsel for applicant cannot be accepted in this regard.
30. There is yet another aspect of the matter, which can be viewed entirely from a different angle. As indicated hereinabove, the applicant has challenged the punishment and appellate orders on all the identical (Ditto) grounds in previous OA bearing No. 4118/2010, which he has now pleaded and urged. We have summoned the record of previous OA No.4118/2010 and compared the grounds taken therein with the similar grounds pleaded in the present OA by the applicant. A bare perusal of the record would reveal that all similar issues in the earlier OA were negated and only matter was remanded to the DA, to consider the issue of quantum of punishment afresh, without taking into consideration the conduct of the applicant.
31. Meaning thereby, all the points pleaded and urged by the applicant in the earlier OA, have also been taken in the present OA. That means, the subject matter directly and substantially in issue in the present OA has been directly and substantially in issue in the previous OA between the same parties. All such issues were considered and negated in the previous OA between the same parties by this Tribunal. Therefore, the applicant is legally debarred from reagitating all the points again, on the analogy of constructive res judicata as envisaged under Explanation IV of Section 11 of The Code of Civil Procedure, 1908 (hereinafter to be referred as "CPC") which postulates that "any matter which might and ought to 15 OA No.1402/2013 have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit". Explanation-V further posits that "any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused".
32. In this view of the matter, the applicant is estopped from re-agitating the same very points assailing the impugned orders on the analogy of principle of constructive res judicata.
33. Above all, assuming for the sake of argument (though not admitted), if applicant was seriously sick, even then he has to inform the department and ought to have got his leave sanctioned from the competent authority as per relevant rules, in view of the ratio of judgment of this Tribunal in OA No.1320/2013 decided on 28.02.2014 titled as Ramesh Kumar Vs. The Commissioner of Police and Others, which is totally lacking in the present case.
34. What cannot possibly be disputed here is 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 16 OA No.1402/2013 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.
35. The reliance in this regard can also be placed on the judgments of the Hon'ble Apex Court in the cases of North Eastern Karnataka Road Transport Corporation vs. Ashappa, (2006) 5 SCC 137 and State of Rajasthan vs. Mohd. Ayub Naz: 2006 SCC (L&S) 175, wherein, it was held that habitual absenteeism can be a valid ground for dismissal of an employee from service. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, he may be removed from service.
36. Meaning thereby, the wilful and unauthorised absence of the applicant for a long period of 4 years, 7 months, 21 days and 12 hours is duly proved on record. The DA and AA have correctly appreciated the matter in the right perspective. In this backdrop, it cannot possibly be saith that the punishment awarded to the applicant is excessive, as urged on his behalf.
37. Furthermore, the jurisdiction of judicial review of this Tribunal in such disciplinary matters is very limited. The Hon'ble Apex Court while considering the jurisdiction of judicial 17 OA No.1402/2013 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".
38. Similarly, the Hon'ble Apex Court in the case of K.L. Shinde v. State of Mysore, (1976) 3 SCC 76, having considered the scope of jurisdiction of this Tribunal in appreciation of evidence has ruled as under:- 18 OA No.1402/2013
"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 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 19 OA No.1402/2013 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."
39. 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 of the prosecution. The DA has rightly imposed the indicated punishment, which was upheld by the AA. The DA as well as AA have recorded 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, in the obtaining circumstances of the case.
40. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
41. In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed, as such. However, the parties are left to bear their own costs.
(V.N. GAUR) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
09.08.2016
Rakesh