Central Administrative Tribunal - Delhi
Suresh Kumar S/O Shri Ram Singh vs The Commissioner Of Police on 9 July, 2010
Central Administrative Tribunal Principal Bench OA No.537/1999 MA No.586/2010 New Delhi this the 9th day of July, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Suresh Kumar S/o Shri Ram Singh, R/o Village Matan Hail, Distt. Jhajjar, Haryana. -Applicant (By Advocate Shri G.S. Charya) -Versus- 1. The Commissioner of Police, Police Headquarters, MSO Building, New Delhi. 2. The Deputy Commissioner of Police, Special Cell (SB), Police Headquarters, MSO Building, New Delhi. 3. Union of India, Ministry of Home Affairs, Govt. of India, New Delhi through its Secretary. -Respondents (By Advocate Shri Vijay Pandita) O R D E R Honble Mr. Shanker Raju, Member (J):
On remand by judgment dated 1.9.2009 in Writ Petition (Civil) No.6917/2000 by the High Court of Delhi the OA has come up for consideration on other issues except one, which has not been agreed to by the High Court, i.e., condonation of charge of absence by treating the absence as leave without pay.
2. Applicant, an erstwhile Head Constable in Delhi Police, now removed as ASI, pursuant upon the decision of the High Court vide DCP (Special Cell) order dated 18.1.2010, impugns order dated 30.4.1997 whereby on remaining absent w.e.f. 28.8.1995 to 26.9.1995, after following a DE under Rule 16 of the Delhi Police (Punishment & Appeal) Rules, 1980 a major penalty of removal from service has been inflected. Also assailed is the appellate order dated 17.11.1998 whereby the punishment has been upheld.
3. As we find that after the decision of the Tribunal, setting aside the penalty on 11.2.2000 till the matter has been remitted back by the High Court on 1.1.2009 the circumstances altered as the applicant was promoted as ASI and since been functioning, as such the order maintaining the earlier removal, which would remain intact as per respondents order dated 18.1.2010 need not be assailed, as the order is a reiteration of earlier order impugned in the present OA. The objection raised by the learned counsel for respondents is overruled to this extent.
4. Applicant, who was working as a Constable posted in Special Cell, due to sudden bout of stomach ache, got him treated with the local Doctors but ultimately rushed to his native place where he was treated for enteric fever and extreme pain by a qualified MBBS Doctor, Dr. J.M. Kapoor, who advised him rest. For the period of absence applicant was proceeded against for remaining absent unauthorizedly willfully for a period of 29 days and his past record of 19 years where petty absence on 17 occasions was relied upon. During the course of enquiry the witnesses were examined who have clearly deposed on behalf of the prosecution that no absentee notice was delivered upon applicant and by the time the service of the notice was effected in one of the instances by the acknowledgement card received back the applicant had already joined. Accordingly, a charge was framed and in defence three witnesses were examined, including ASI Ram Sawroop who proved that while visiting the house of the applicant at his native place he was apprised of his ailment and as the area was flooded due to lack of communication the information could not be sent by the applicant. DW-2 Dr. J.M. Kapoor, MBBS authenticated the illness and medical rest advised to the applicant during cross examination. It is admitted that applicant was not in a position to travel during the illness. One of the village neighbors also proved the situation when the village of the applicant was flooded. The enquiry officer (EO) merely on the ground that it was possible for the applicant to have informed the office discarding the illness of the applicant assumed that he was not sick. However, the absentee notice, which was not served upon applicant as no service was effected assumed that applicants story was an afterthought. By relying upon the past record and on the ground of absence of prior permission from the competent authority held him guilty of the charge. This when responded to resulted in penalty where without going into the circumstances of absence of applicant the disciplinary authority (DA) heavily relying upon the past absence of the applicant not being an expert authority observed the medical certificate of the applicant as stage-managed imposed the penalty.
5. In appeal the penalty was upheld on past record and the only explanation to discard the medical record of the applicant was availability of the other Doctors.
6. Learned counsel of applicant states that not even a single notice was served upon applicant, yet the applicant due to his sudden illness proceeded to his native place and once the medical record has been proved the absence cannot be treated as willful. However, as the situation was that due to flood communication was disrupted applicant could not inform the department. The charge at best of non-permission would not render him liable for any penalty. It is also stated that the past record of absence is in the span of about 19 years and unless the main charge is proved, it cannot be relied upon to treat the applicant as incorrigible to inflict the extreme penalty of removal.
7. Learned counsel would further contend that none of the contentions has been taken into consideration by the DA or the appellate authority and the medical record has been questioned without any authority.
8. Lastly it is stated that the penalty imposed is highly disproportionate to the misconduct alleged.
9. On the other hand, learned counsel of respondents would vehemently oppose the contentions and state that the applicant has absented himself without permission willfully, which is a grave misconduct and relied upon plethora of decisions to support his plea. It is stated that the enquiry has been conducted in accordance with rules and as in past also applicant was punished his retention in Delhi Police is not apt.
10. We have carefully considered the rival contentions of the parties and perused the material on record.
11. In our considered view in order to treat an absence to be misconduct is that it should be willful. In the instant case, the applicant, who was suddenly taken ill by a bout of stomach ache, had gone to the Doctor in Delhi but as the applicant was not relieved he proceeded to his native place and this fact of under treatment of a qualified Doctor is amply proved by the evidence of MBBS Doctor who had stated that the applicant was not only been treated by him for enteric fever etc. but also advised rest and was not in a position to move. In such view of the matter, the finding of the EO to discard the testimony of Doctor, as the medical certificate issued by a Doctor duly qualified is admissible under Rule 19 (5) of the CCS (Leave) Rules, 1972 and in case of any doubt, second medical examination is the prerogative of the respondents, which they have not exercised. Accordingly, the finding as to the certificate being stage-managed when the authorities acting on quasi-judicial side are not experts in medical science the comments are unwarranted and without jurisdiction. As the testimony of DW-2 Doctor Kapoor had remained unrebutted, the observation to arrive at a finding of guilt of applicant of willful absence cannot be countenanced.
12. Insofar as non-information is concerned, as the applicant has proceeded abruptly due to sudden illness and the witnesses have clearly deposed that the area where the applicant was resting in his native place was flooded and there was no communication applicant on immediately getting fit appeared before the authorities and submitted the medical record. No absentee notice was ever served legally upon applicant, which is admitted on record. In such view of the matter by not subjecting the applicant to second medical examination his ground of absence, i.e., illness cannot be doubted and when mitigating circumstances were there it cannot be proved legally on evidence recorded in the enquiry that the applicant was either guilty of willful absence or without permission remained absent unauthorizedly. As such, the penalty imposed on absence of 29 days cannot be countenanced being disproportionate, as ruled by the Apex Court in Pepsu Road Transport Corporation v. Rawel Singh, (2008) 4 SCC 42 that absence of few days would not result in dismissal.
13. Leaving apart the issue, Sections 8-A and 10 of Delhi Police Rules have been interpreted by the Tribunal in a Full Bench decision in Virender Kumar v. Commissioner of Police, 1997-2001, ATFBJ 1 where the reference in case of absence has been answered to the extent that Rule 8-A of the Rules on the basis of the Apex Courts decision cited by the learned counsel appearing for respondents Mrs. Vijay Pandita, i.e., State of U.P. v. Ashok Kumar, 1996 (32) ATC 239 SC does not lay down that any unauthorized absence from duty automatically amounts to grave misconduct rendering one unfit for police service. In such view of the matter, unless the main charge is proved against the applicant the past misconduct cannot be relied upon to inflict the severe punishment like removal. Though the past record was made a charge but when the main allegation has not been established, removing applicant from service cannot be countenanced.
14. Another aspect of the matter, which should not be left consideration, is that after the decision of the Tribunal applicant, who has been reinstated in 2000 has earned one promotion and his record of 9 years being clean and since he has been promoted to the higher rank, his dismissal after 13 years would not be just and reasonable in the peculiar circumstances of the present case.
15. In the result, for the foregoing reasons, OA is allowed to the extent that impugned orders are set aside. Applicant would be deemed to have been reinstated in service with effect from 1997 and would be restored back to the rank of ASI by not operating further order dated 18.1.2010. In such an event, except back wages, applicant shall be entitled to counting of service for all benefits. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.