Central Administrative Tribunal - Delhi
Om Prakash vs Comm. Of Police on 30 November, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 71/2013
Reserved on: 10.10.2017
Pronounced on: 30.11.2017
Hon'ble Mrs. Jasmine Ahmed, Member (J)
Hon'ble Mr. Uday Kumar Varma, Member (A)
Ex. Ct. Om Prakash
No. 4308/PCR (PIS No.28893418)
S/o Shri Nathu Ram
R/o H.No.7, Vill. & PO Begum Pur,
Delhi-86 ... Applicant
(Through Shri U. Srivastava, Advocate)
Versus
Govt. of NCT Delhi through
1. The Chief Secretary
Govt. of N.C.T. of Delhi Secretariat
New Delhi
2. The Commissioner of Police
Police Head Quarters, I.P. Estate (I.T.O.),
New Delhi
3. The Additional Commissioner of Police
PCR Delhi
4. The Addl. Dy. Commissioner of Police (GA)
Police Control Room, Delhi ... Respondents
(Through Shri B.N.P. Pathak, Advocate)
ORDER
Mrs. Jasmine Ahmed, Member (J) Challenge in this OA is against the order of dismissal from service of the applicant for habitual absenteeism and 2 OA 71/2013 against the appellate order dismissing the appeal preferred by the applicant.
2. The admitted facts are that the applicant entered the services of the Respondent in 1989 as a Constable and during the span of 4 years stretching from July 2005 to May 2008, he had been intermittently absent from duties without due sanctions and the total period of such unauthorized absence accounted for about 357 days on a total of ten occasions, duration of such absence ranging from 1 day to 88 days.
Departmental proceedings were initiated, inquiry conducted, report of the Inquiry Officer made known to the applicant and his representation called for and ultimately, on consideration of the case, the Disciplinary authority imposed penalty of dismissal, vide order dated 07-07-2011 (Annexure A-1).
Appeal dated 04-11-2011 submitted by the applicant had also been dismissed vide order dated 25-09-2012. In the OA the applicant has made the following submissions:-
(a) Certain adverse circumstances such as the demise of his spouse and his father prevailed, on account of which he was unable to attend office.
(b) Past absence has also been taken into account.3 OA 71/2013
(c) Summary of allegations have not been served upon him as he did not receive any of such summary of allegations.
(d) None of the PWs had stated the reasons for the absence.
(e) Punishment awarded without considering the satisfactory service of the past and present.
(f) Applicant has no source of income and that his family members are dependent on him.
(g) Although his absence was unauthorized they do not constitute misconduct
(h) Pre-conceived determination of the EO in conducting the inquiry
(i) The case of the applicant is covered by certain precedents - (a) K. Gopa Kumar vs Chief Staff Officer (P & A), HQ SNC Wellingdon Island P.O. Kochi and Others (2005) (1) SLJ(CAT) 217, (b) Sohan Lal vs Union of India 2006(2) ATJ (CAT) PB 88 (c) Judgment dated 23-04-2014 in W.P.(C) 1412/2004 - Sanjay Kumar vs UOI and others and (d) Delhi Administration & Anr vs Constable Yasin Khan (2000) DLT 144 4 OA 71/2013
(j) Dismissal of appeal without application of mind by the appellate authority
(k) Penalty being disproportionate and without taking into account the satisfactory service of 22 long years.
3. Respondents contested the OA in which they have contended that the unauthorized absence of the applicant on a number of occasions with no satisfactory explanation for such unauthorized absence, non participation in the inquiry proceedings, failure to appear to attend a hearing as called for by the Disc. Authority, have resulted in awarding the penalty of dismissal by the Disciplinary Authority and absence of any fresh material beyond what had been stated in the appeal at the time of personal hearing and consideration of the entire records and the findings of the IO as well as decision of the Disciplinary Authority had resulted in the Appellate authority's dismissing the appeal. Reliance was placed upon the decision of this Bench in the case of Sunil Kumar vs Govt of NCT of Delhi and others OA No. 3300/2013 decided on 12-09-2016.
4. Counsel for the respective parties presented their cases on the basis of the pleadings and reference to the decided cases had also been invited.
5 OA 71/20135. Arguments were heard and documents perused.
6. The case is one of intermittent unauthorized absence from duties of a Police official (Driver), who is governed by the Delhi Police Act and attendant Rules. The period of absence ranges from 1 day to 88 days and occasioned at least for ten times and total absence was for 357 days. Absence notices issued on six times did not yield any fruitful results. A caution was also administered that in case he did not respond to the absence notice it would be presumed that he has absented himself willfully and unauthorisedly and the period of such unauthorized absence will be treated as not spent on duty for all intents and purposes and will not be regularized in any manner besides disciplinary action that may be taken against him. Yet he had chosen to ignore all such notices.
7. A few decisions of the Apex Court on the subject matter of penalty for unauthorized absence in police/disciplined Forces would take us in the right path in administering justice.
8. In Rajinder Kumar v. State of Haryana, (2016) 15 SCC 693, wherein the individual, a police official was on unauthorized absence for a total period of 37 days, taking into account his health condition and the short period of unauthorized absence, the order of dismissal from service 6 OA 71/2013 was converted into one of compulsory retirement. The Apex Court in that case has held as under:-
6. It is not in serious dispute that the appellant is a serious patient of tuberculosis.
According to the disciplinary authority as well as the appellate authority, the appellant became completely unfit for service in view of the background of the unauthorised absence on many occasions. Once a person is found unfit for service on account of intermittent and unauthorised absence for which the delinquent though has a reasonable explanation, no doubt, there is no point in continuing him in service either by reverting him or by imposing punishments like stoppage of increment, etc. But the question is, whether dismissal is the only option in such situations where an employee is found unfit for service. We have no doubt in our mind that indiscipline of any sort cannot be tolerated at all in a disciplined force. However, in the factual background of the appellant which we have referred to above, the disciplinary authority or at least the appellate authority, should have considered whether a punishment other than dismissal would have been appropriate and whether dismissal is the only punishment available and appropriate in the circumstances. The fact that different punishments are prescribed under the Rules shows that there is a discretion vested on the competent authority to decide what should be the proper punishment taking note of the nature of misconduct, its gravity and its impact on the service. Having regard to the facts and circumstances of each case, the disciplinary authority has to take a proper decision on punishment.
9. In the case of Mahinder Dutt Sharma v. Union of India, (2014) 11 SCC 684 the applicant before the Tribunal therein had a clean record of service with certain accolades in his favour for over 24 years and it was in the later part of his service that he happened to be on unauthorised absence 7 OA 71/2013 from duties for a period of about 340 days in spells and this has culminated into dismissal from service. However, the Apex Court has directed the respondents to bifurcate the period of service into one of good conduct service and the other punishable one and to afford the legitimate due for the period of good conduct service and also to keep in view the tribulations he had to suffer due to certain domestic circumstances such as the demise of his father followed by his wife and his own ill health. The Apex Court has held in this regard as under:-
17. We shall only endeavour to delineate a few of the considerations which ought to have been considered, in the present case for determining whether or not, the appellant was entitled to compassionate allowance under Rule 41 of the Pension Rules, 1972. In this behalf it may be noticed that the appellant had rendered about 24 years of service prior to his dismissal from service, vide order dated 17-5-1996. During the above tenure, he was granted 34 good entries, including 2 commendation rolls awarded by the Commissioner of Police, 4 commendation certificates awarded by the Additional Commissioner of Police and 28 commendation cards awarded by the Deputy Commissioner of Police. Even though the charge proved against the appellant pertains to his unauthorised and wilful absence from service, there is nothing on the record to reveal, that his absence from service was aimed at seeking better pastures elsewhere. No such inference is even otherwise possible, keeping in view the length of service rendered by the appellant. There is no denial that the appellant was involved, during the period under consideration, in a criminal case, from which he was subsequently acquitted. One of his brothers died, and thereafter, his father and brother's wife also passed away. His own wife was suffering from cancer. All these tribulations led to his own ill-health, 8 OA 71/2013 decipherable from the fact that he was suffering from hypertension and diabetes. It is these considerations, which ought to have been evaluated by the competent authority, to determine whether the claim of the appellant deserved special consideration, as would entitle him to compassionate allowance under Rule 41 of the Pension Rules, 1972.
10. In a relatively recent case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108, the Apex Court referred to a number of decisions as hereunder:-
"24. In this context, it is seemly to refer to certain other authorities relating to unauthorised absence and the view expressed by this Court. In State of Punjab v. P.L. Singla the Court, dealing with unauthorised absence, has stated thus: (SCC p. 473, para 11)
"11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."
25. Again, while dealing with the concept of punishment the Court ruled as follows: (P.L. Singla case , ) "14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to 9 OA 71/2013 disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence."
26. In Tushar D. Bhatt v. State of Gujarat , the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organisation such an approach and attitude of the employee cannot be countenanced.
27. Thus, the unauthorised absence by an employee, as a misconduct, cannot be put into a straitjacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in P.L. Singla .
28. Presently, we shall proceed to scrutinise whether the High Court is justified in applying the doctrine of proportionality. The doctrine of proportionality in the context of imposition of punishment in service law gets attracted when the court on the analysis of material brought on record comes to the conclusion that the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court. In this regard a passage from Indian Oil Corpn. Ltd. v. Ashok Kumar Arora is worth reproducing:
"20. At the outset, it needs to be mentioned that the High Court in such 10 OA 71/2013 cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity;
findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of an employee."
29. In Union of India v. G. Ganayutham , the Court analysed the conception of proportionality in administrative law in England and India and thereafter addressed itself with regard to the punishment in disciplinary matters and opined that unless the court/Tribunal opines in its secondary role that the administrator was, on the material before him, irrational according to Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. and Council of Civil Service Unions v. Minister for the Civil Service17 norms, the punishment cannot be quashed.
30. In Coal India Ltd. v. Mukul Kumar Choudhuri , the Court, after analysing the doctrine of proportionality at length, ruled thus:
"19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision- maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.
20. One of the tests to be applied while dealing with the question of quantum of punishment would be: Would any 11 OA 71/2013 reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.
21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations."
11. In the case of Om Prakash v. State of Punjab, (2011) 14 SCC 682, the Apex Court made an observation as under:-
"12. Our attention is also drawn to the decision of this Court in Maan Singh v. Union of India wherein a similar situation and proposition has been reiterated by this Court. There are a number of decisions of this Court where it has been held that if the departmental authorities, after passing the order of punishment, passes an order for maintaining a correct record of the service of the delinquent officer and also for adjustment of leave due to the delinquent officer, the said action cannot be treated as an action condoning the lapse and the misconduct of the delinquent officer."12 OA 71/2013
12. The law that could be discerned from the above judgments of the Apex Court in respect of unauthorized absence could be perorated as hereunder:-
(a) Unauthorised absence (overstaying leave) is an act of indiscipline. as a misconduct, cannot be put into a straitjacket formula for imposition of punishment. It will depend upon many a factor.
The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. (P.L.Singla case supra)
(b) Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.(Coal India vs Mukul Kumar Choudhury (supra) case)
(c) Indiscipline of any sort cannot be tolerated at all in a disciplined force. However, the disciplinary authority or at least the appellate authority, should have considered whether a punishment other than dismissal would have been appropriate and whether dismissal is the only punishment available and appropriate in the circumstances. The fact that different punishments are prescribed under the Rules shows that there is a discretion vested on the competent authority to decide what should be the proper punishment taking note of the nature of misconduct, its gravity and its impact on the service. Having regard to the facts and circumstances of each case, the disciplinary authority has to take a proper decision on punishment.
(d) if the departmental authorities, after passing the order of punishment, pass es an order for maintaining a correct record of the service of the delinquent officer and also for adjustment of leave due to the delinquent officer, the said action cannot be treated as an action condoning the lapse and the misconduct of the 13 OA 71/2013 delinquent officer.[Maan Singh vs Union of India referred to in Om Parkash case(supra)]
13. Telescoping the above on the facts of the instant case, it is seen that the applicant's record for about 22 years was neat and clean. Had he retired on completion of the aforesaid period of 22 years, he would be entitled to pension as admissible under the then extant rules and would also be entitled to subsequent enhancement at periodical intervals.
He had however, not gone on pre-mature retirement but abstained from duties intermittently and the reasons given by him are the sad demise of his father, then his wife and later he himself had fallen sick. The total duration of absence in bits and pieces is 374 days, which is comparable to another case where the period of unauthorized absence is 340 days in the case of Mahendra Dutt Sharma (supra). Incidentally in that case also there was service with conduct for a period of 24 years, which had been taken into account to dilute the gravity of misconduct and in that case, despite dismissal, compassionate allowance was suggested by the Court. In the instant case, of course, retaining the dismissal order it is not possible to afford the applicant any reward for the period of blemish free service.
14. Now the contentions of the applicant as itemized in paragraph 2 above may be discussed. These are as under:-
(a) Certain adverse circumstances such as the demise of his spouse and his father 14 OA 71/2013 prevailed, on account of which he was unable to attend office.
Rajinder Kumar vs State of Haryana (supra) refers and the same supports the case of the applicant.
(b) Past absence has also been taken into account.
This is not fatal to the proceedings. The Apex Court has held in a very recent case of Central Industrial Security Force v. Abrar Ali, (2017) 4 SCC 507 as under:
17. Charge 3 was that the respondent had become habitual in committing indiscipline and disorderliness. A reference was made to two major penalties of deduction of pay and one minor punishment of reduction of seven days' salary earlier. The disciplinary authority found that the respondent did not improve in spite of being punished earlier. The High Court agreed with the contention of the respondent and held that a fresh enquiry cannot be initiated into a misconduct for which a delinquent had already suffered a penalty. The High Court found that any penalty imposed under Charge 3 would amount to double jeopardy. We disagree with the finding of the High Court as we are of the view that the respondent was not being tried again for previous misconduct. As the respondent did not improve in spite of being punished earlier and had become habitual in indiscipline and disorderliness, the disciplinary authority rightly found Charge 3 as proved. The desirability of continuance of the respondent was considered on the basis of his past conduct which does not amount to double jeopardy. In any event, past conduct of a delinquent employee can be taken into consideration while imposing penalty. We are supported in this view by a judgment of this Court in Union of India v. Bishamber Das Dogra9, held as follows:15 OA 71/2013
"30. ... But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require."
(c) Summary of allegations have not been served upon him as he did not receive any of such summary of allegations. It is a matter of fact that the entire proceedings were ex parte, as the applicant never responded to any of the absence notices.
(d) None of the PWs had stated the reasons for the absence. PWs belonging to the prosecution, they could only point out those aspects which would go to prove the misconduct and the exact reasons are not known to them and the applicant who knew the reasons should furnish. Thus, this contention has no merit.
(e) Punishment awarded without considering the satisfactory service of the past and present.: Decision in and Mahindra Dutt Sharma vs Union of India (supra) supports the case of the applicant.
(f) Applicant has no source of income and that his family members are dependent on him.:
Immaterial so far as the misconduct is concerned. In fact the penury situation should have been remembered at the time of remaining absence for such a long period.
(g) Although his absence was unauthorized they do not constitute misconduct: The Apex Court views it as a serious indiscipline vide P.L. Singla (supra). Hence, there is no merit in this contention.16 OA 71/2013
(h) Pre-conceived determination of the EO in conducting the inquiry : No supporting factors given. It is seen that the I.O. has acted in accordance with the procedure; he sought the permission of the Disciplinary Authority for proceeding ex parte and no fault could be found in his conducting the inquiry.
(i) The case of the applicant is covered by certain precedents - (a) K. Gopa Kumar vs Chief Staff Officer (P & A), HQ SNC Wellingdon Island P.O. Kochi and Others (2005) (1) SLJ(CAT) 217, (b) Sohan Lal vs Union of India 2006(2) ATJ (CAT) PB 88 (c) Judgment dated 23-04-2014 in W.P.(C) 1412/2004 - Sanjay Kumar vs UOI and others and (d) Delhi Administration & Anr vs Constable Yasin Khan (2000) DLT 144. The cases referred to in this judgment from which the law is discerned are more appropriate.
(j) Dismissal of appeal without application of mind by the appellate authority: This contention is customary and conventional without any attempt to substantiate the same.
Hence, has to be rejected.
(k) Penalty being disproportionate and without taking into account the satisfactory service of 22 long years. This contention has some merit as discussed above.
15. Justice is tempered with mercy (Coimbatore District Co-
operative Bank (2007) 4 SCC 669). Had the misconduct been one of grave in character touching the integrity of the applicant, dismissal would have been fully justified without any regard for the satisfactory past service. The period prior to the irregular attendance had been substantial i.e. 22 years. The facts in the case of the applicant is comparable to that of Mahinder Dutt Sharma v. Union of India, (2014) 17 OA 71/2013 11 SCC 684 wherein also the period of prior satisfactory services (24 years), unauthorised absence (340 days) and domestic circumstances (bereavement in family and ill health of the individual) are all comparable (the only difference being that in the other case, the individual had certain accolades which has no relationship with the grant of pension, as pension is admissible on the basis of total qualifying services), the case of the applicant herein could well be considered for a lesser penalty which would not affect the pension for the past satisfactory period of 22 years.
16. The impugned orders only to the extent of quantum of punishment are thus quashed and set aside with a direction to the Disciplinary Authority to consider awarding a lesser punishment as suggested above. Time calendared for complying with this order is six weeks.
17. No costs.
(Uday Kumar Varma) (Jasmine Ahmed) Member (A) Member (J) /dkm/