Central Administrative Tribunal - Delhi
Vikram Singh vs Govt. Of Nct Of Delhi Through on 9 December, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.4118/2010 Friday, this the 9th day of December 2011 Honble Shri M.L. Chauhan, Member (J) Honble Smt. Manjulika Gautam, Member (A) Vikram Singh Aged about 36 years Ex. Ct. of Delhi Police PIS No.28981598 s/o Shri Jaswant Singh r/o VPO Chandavas Distt Rewari, Haryana ..Applicant (By Advocate: Shri Anil Singal) Versus 1. Govt. of NCT of Delhi through Commissioner of Police PHQ, IP Estate, New Delhi 2. Joint Commissioner of Police Traffic, PHQ IP Estate, New Delhi 3. DCP/Traffic (HQ) PHQ, IP Estate, New Delhi ..Respondents (By Advocate: Shri Amit Anand) O R D E R (ORAL)
Shri M.L. Chauhan:
The applicant has filed this O.A., thereby praying for the following reliefs:-
1. To call for the records of the case and quash/set aside the impugned orders mentioned in Para-1 of O.A., direct the respondents to reinstate the applicant in service with all consequential benefits including promotion/seniority & arrears of pay.
2. To award costs in favor of the applicant and
3. To pass any order or orders which this Honble Tribunal may deem just & equitable in the facts & circumstances of the case.
2. Briefly stated, facts of the case are that the applicant while posted at IGI Circle, was transferred to R P Bhawan in compliance of PHQs transfer order dated 15.6.2009 and to make his departure from RND vide DD No.20/IGI Circle dated 4.7.2004. The applicant did not report to RND and absented himself willfully, unauthorizedly and without any intimation to the authorities. However, he reported to RNB vide DD No.46/RND on 26.2.2009 after absenting himself for a period of 4 years, 7 months, 21 days and 12 hours unauthorizedly. On 6.4.2009, he was again relieved on transfer to R P Bhawan vide DD No.36 but he did not report there and remained absent. Two absentee notices dated 13.5.2009 and 26.5.2009 were also issued with a direction to him to resume duties. The applicant was also directed that in case of illness he should report to the Medical Superintendent, Civil Hospital for medical examination. Despite service of above two absentee notices on the applicant, he did not join. The applicant neither reported for medical examination at Civil Hospital nor reported for duty. On the basis of these facts, summary of allegation was issued to the applicant and also a regular departmental inquiry was initiated. The inquiry officer examined 4 PWs during departmental proceedings. On the basis of statement made by the PWs, the inquiry officer prepared a charge and got it approved from the disciplinary authority. A copy of the charge sheet was served upon the applicant on 17.12.2009. The inquiry officer after giving opportunity to the applicant to produce DWs against the charge submitted his report, thereby concluded that the charge against the applicant stands proved beyond doubt. A copy of inquiry officers report was also given to the applicant and the disciplinary authority after agreeing with the findings of the inquiry officer imposed the punishment of dismissal from service vide order dated 23.4.2010 (Annexure A-2). The appeal filed by the applicant against the order of disciplinary authority was also rejected vide order dated 26.8.2010 (Annexure A-3). It is these orders, which are under challenge before us.
3. Notice of this application was given to the respondents and they have filed their reply affidavit wherein the respondents have justified their action and it has been stated that the applicant remained absent unauthorizedly despite the fact that he was also declared fit to resume duty by the doctor of PHC, MCD, Daulatpur, Delhi on 29.8.2007 and that the applicant had absented himself from duty from 4.7.2007 to 25.2.2009 unauthorizedly, willfully and without any prior intimation/permission from the competent authority, which is in violation of the provisions of CCS (Leave) Rules 1972 and the instructions contained in SO No.111 of Delhi Police.
4. It has further been stated by the respondents that the defence statement of the applicant to the effect that he was suffering from anxiety, neurosis and depression caused by bouts of epilepsy and dizziness cannot be accepted on the face of documents submitted by the applicant.
5. The applicant has filed the rejoinder affidavit, thereby reiterating the submissions made in the OA.
6. We have heard the learned counsel for the parties and gone through the material placed on record.
7. Learned counsel for applicant has drawn our attention to the summary of allegation (Annexure A-1 page 12 of the paper book), order passed by the disciplinary authority dated 23.4.2010 (Annexure A-2) and also the order passed by the appellate authority (Annexure A-3) to show that apart from the allegations leveled in the charge sheet, disciplinary as well as appellate authorities have taken into consideration his past conduct regarding absent of applicant at three different earlier occasions in the past willfully and knowingly without intimation or prior approval of the competent authority and argued that the past conduct of the applicant could not have been taken into consideration without giving him an opportunity to explain his position.
8. Learned counsel has also drawn our attention to G.I., MHA, OM No.134/20/68-AVD dated 28.8.1968 (Annexure A-9), which stipulates that it is not appropriate to bring the past record in deciding the penalty, unless it is made subject matter of specific charge in the charge sheet itself. At this stage, it will be useful to quote the relevant portion of the said OM, which thus reads:-
Not appropriate to bring in past record in deciding the penalty, unless it is made the subject matter of specific charge in the charge sheet itself. A question has arisen whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on the officer in Disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned in the order imposing the penalty. This has been examined in consultation with the Ministry of Law. It is considered that if previous bad record, punishment, etc. of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it should be made a specific charge in the charge-sheet itself, otherwise any mention of the past bad record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the charge sheet, would vitiate the proceedings, and so should be eschewed.
9. Learned counsel for applicant has also drawn our attention to the decision of the High Court of Delhi in Delhi Administration & another v. Constable Yasin Khan, 86 (2000) DLT 144 (DB). At this stage, it will be useful to quote paragraph 3 of the judgment, which thus reads:-
3 Rule 16 (11) of the Rules makes it obligatory for the disciplinary Authority to specifically include the previous bad record in the Memo of Charges itself as a definite charge if it is to be considered while awarding punishment and adequate opportunity to the delinquent official to defend himself against that charge is required to be given. The absence of a specific charge regarding past conduct cannot be relied upon by the disciplinary Authority while awarding punishment. As such the order of punishment was bad on this count.
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.
( Smt. Manjulika Gautam ) ( M L Chauhan ) Member (A) Member (J) /sunil/