Central Administrative Tribunal - Delhi
Surender Kumar vs The Commissioner Of Police on 6 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi OA 4216/2012 Monday, this the 6th Day of May, 2013 Honble Shri G George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Surender Kumar Ex. Constable No. 1535/C (Ex. PIS No. 28880652) S/o Sh. Jagdish Chander R/o Vill. & PO Jodia PS Kot Kosim, Distt. Alwar Applicant (By Advocate: Shri S.C. Sagar) Versus 1. The Commissioner of Police Through Jt. Commissioner of Police Delhi Police Northern Range PHQ, New Delhi 110002. 2. Govt. of NCT of Delhi Players Building, Delhi Secretariat New Delhi 110002 (Through its Chief Secretary) . Respondents (By Advocate: Shri Amit Anand) ORDER (ORAL)
Shri G. George Paracken, M(J) The facts in the present Original Application is that the Applicant was absent from duty for a continuous period of 140 days, 23 hours and 15 minutes in one spell and for a period of 125 days, 3 hours and 10 minutes in another spell. Earlier also he absented himself from duty without authorization on 31 different occasions for which he was reprimanded but he did not mend his ways. He was, therefore, served with the following summary of allegations on 25.06.2006 and that reads as under:-
SUMMARY OF ALLEGATIONS It is alleged that Const. (Exe.) Surender Kumar, No. 1535/C PIS No. 28880652 while posted at P.S. Darya Ganj was marked absent vide DD No. 60B dated 03.03.2009. During the period of absence two absentee notices were issued to him vide Nos. 7456-61/SIP/AC/C dated 25.03.2009 and No. 12944-47/SIP/AC/C dated 04.06.2009 and the same were delivered at his permanent address through S.P. Alwar Rajasthan & SHO Darya Ganj, Delhi. He resumed his duty vide DD No. 51B dated 22.07.2009 after absenting himself willfully and unauthorisedly for a period of 140 days, 23 hours & 15 minutes. On resuming duties an explanation was called from the Constable for his unauthorized absent from duties vide this office No. 17631/SIP/AC/C dated 20.08.2009 and in his reply to the explanation he had stated that he was suffering from jaundice and he went to his native place in Rajasthan and undergone treatment from Ayurvedic Dispensary and also produced medical papers of his treatment. He was called in orderly room but he did not turn up in orderly room despite issue of 02 notices. Further he was again marked absent vide DD No. 32B dated 04.10.2009 and absentee notice vide this office No. 23609-12/SIP/AC/C dated 14.12.2009 was issued at his permanent address. The contents of the absentee notice dated 14.12.2009 was got noted from him through SHO/Darya Ganj, Delhi and S.P. Alwar (Rajasthan) on 31.12.2009. He resumed his duties vide DD No. 46B dated 06.02.2010 after absenting himself for a period of 125 days, 03 hours & 10 minute sillfully & unauthorisedly without giving any intimation/information to the department which is a violation of S.O. No. 111 and Rule 19.5 of CCS (Leave) Rules, 1972.
Previously he also remained absent on 31 different occasion and some accessions he was warned/reprimanded but he did not mend himself and again absented himself willfully and unauthorizedly.
The above said act on the part of Const. Surender Kumar, No. 1535/C amounts to gross misconduct, negligence dereliction and irresponsible behavior in the discharging his official duties which renders him liable to be dealt with departmentally under the provision of Delhi Police(Punishment and Appeal) Rules 1980.
2. The aforesaid summary of allegations, list of prosecution witnesses and list of relied upon documents along with copies thereof were served upon the applicant and he was made to understand the contents therein. After the listed prosecution witnesses were examined in the presence of the applicant and his Defence Assistant, the Enquiry Officer framed the following charges against the applicant:-
Charge I, Inspector Om Prakash Pawar, EO charge you Cost. (Exe.) Surender Kumar, No. 1535/C (PIS No. 28880652) that while remained posted in PS Darya Ganj, Central District you remained absent from duty wilfully and unauthorizedly without prior intimation to the competent authority on the following different occasions:
No. DD No. & Dt. Of absence DD No. & Dt. Of arrival Period of absence Days Hours Minutes 1 60B dated 3.3.2009 PS Daryaganj 51B dated 22.7.2009 PS Daryaganj 140 23 15 2 32B dated 4.10.2009 PS Daryaganj 46B dated 6.2.2010 PS Daryaganj 125 3 10 Three absentee notices were issued to you vide (1) No.7456-61/SIP(AC)/C dated 25.3.2009, (2) No. 1294447/SIP/AC/C dated 4.6.2009 and (3) No.2360912/SIP(AC)/C dated 14.12.2009 with the directions to resume you duty at once failing which departmental action will be taken against you and in case of illness you should report to Chief Medical Officer, Alwar (Rajasthan) for second medical opinion. The above absentee notices delivered to you through S.P. Alwar District (Rajasthan) which were duly received by you under you proper receipt but you did not bother to report for duty and remained absent wilfully and unauthorizedly and without any intimation to the department, which is contravention of SO No. 111 and Ruyle 19.5 of CCS (Level)Rules, 1972.
Previously you also remained absent on 31 different occasions for which you were reprimanded, but you did not mend himself and again absented himself wilfully and unauthorizedly.
3. The applicant was served with a copy of the aforesaid charge. As he did not plead guilty, the enquiry proceedings continued. He was also allowed opportunity to lead his defence through Defence Witnesses, if any, followed by written statement of defence.
4. The applicant did not produce any defence witness in his favour but submitted the written statement of defence stating that he was seriously ill and bed ridden for the 1st and 2nd spells of absence from duty from 03.03.2009 for a period of 140 days, 23 hours and 15 days and from 04.10.2009 for 125 days, 3 hours and 10 minutes. He has also submitted that on both the occasions, he had submitted the medical certificates about his illness to the authorities concerned. Again, according to him on both the occasions he was unable to intimate the department about his illness due to its seriousness of his as he was totally bed ridden. Further, according to him, his past absence record should not have been taken into account in the instant departmental inquiry as all those absences have already been decided.
5. The Enquiry Officer, in his report came to the conclusion that the applicant absented himself from duty on both the aforesaid occasions unauthorisedly. He has also held that the medical certificates issued by a doctor in favour of a Govt. servant does not confer any right upon him to withdraw himself from Government duty on his own accord. As per the provisions contained in S.O. No.111 read with Rule 19(5) of CCS (Leave) Rules, 1972, one was required to take prior permission of the competent authority to avail medical rest. But in the present case the applicant on both occasions did not do so and absented himself from duty for long spells without any permission or even intimation of his whereabouts. In spite of absentee notices, he refused to join duty. His past service record also reveals that he had absented himself from duty on 31 different occasions without permission. Although all those absences have been regularized, it shows that he is a habitual absentee. The Inquiry Officer, therefore, has held that the aforesaid charge levelled against him stood proved.
6. Tentatively agreeing with the aforesaid findings of the Inquiry Officer, a copy of the Enquiry Officers report was served upon the applicant for submitting his written representation. Even though he received the same, he did not give any reply. The opportunity for personal hearing granted to him was also availed by him. Therefore, the disciplinary authority came to the conclusion that he had nothing to say in his defence and he has accepted his guilt. Thereafter, the disciplinary authority considered the relevant documents in the departmental inquiry file such as summary of allegations, statement of PWs, charge and other material and observed that he remained absent from duty wilfully and unauthorisedly without intimation to the department. Police department being an emergency service, such long absences from duty by policemen without any valid reason strikes at the very discipline of the force. He has also observed that in view of the current scenario of the country, Delhi Police department requires most devoted and dedicated persons. He has also held that the applicant has violated the provisions contained in Rule 19(5) of CCS (Leave) Rule, 1980 and SO No. 111 of Delhi Police. Further, the disciplinary authority observed that absenteeism in the force is a very serious matter because it cripples the entire administration of the police department. Each and every police personnel is deployed for duty with a specific task. It is like a chain and if any link of the chain is missing, it jeopardizes the entire system. It is a serious misconduct on the part of the applicant which calls for exemplary punishment. Therefore, the disciplinary authority dismissed the applicant from service with immediate effect vide impugned order dated 27.04.2011. His absence period was also decided as period not spent on duty for all intents and purposes on the principle of no work no pay. The relevant part of the said order reads as under:-
I have carefully gone through the DE file including DE order, summary of allegations etc., statement of PWs, charge and other material came on DE file during DE proceedings. The delinquent Constable Surender Kumar No.1535/C was also called in OR on 21.4.2011 to hear him in person for the fair play and natural justice. Neither he appeared in OR despite noting the notice of O.R. served upon him on 18.4.2011 vide this u.o. No.5481-82/HAP/AC-II/C dated 16.4.2011 not sent any intimation in this regard. Besides, the delinquent Constable did not submit his written representation against the findings served upon him. All this shows clearly that he has nothing in his defence and has accepted his guilt. Hence, undersigned has no option to accept the findings submitted by the EO. The evidence came on record/DE file is also against the delinquent Constable. He remained absent from his duties wilfully and unauthorizedly without intimation to the department. Police is an emergency service and long absence from the duty without any valid reason strikes at the discipline of the force. In view of current security scenario of the country, Delhi Police Department requires most devoted and dedicated persons. He has violated the provisions contained in Rule 19(5) of CCS (Leave) Rule, 1980 and S.O. No. 111 of Delhi Police in this fashion. Absenteeism in the force is a very serious matter because it cripples the entire administration of the police department. Each and every police personnel is deployed for duty with a specific task. It is like a chain and if any link of the chain is missing, it jeopardises the entire system. It is a serious misconduct on the part of the delinquent constable which calls for exemplary punishment. This is also an act of indiscipline on the part of Constable Surender Singh No.1535/C (PIS No.28880652) and it has also been established that delinquent constable had absented himself wilfully and unauthorizedly. In a disciplined force, wilful and unauthorised absence, if taken lightly, will not only encourage other members of the force but also destroy the whole fabric of discipline.
In view of above facts and discussion, I do not see any other penalty, which can be awarded to such incorrigible person. Therefore, agreeing with the findings of the EO and keeping everything in mind I, Parwaiz Ahmed, Additional Dy. Commissioner of Police, Central District Delhi hereby dismiss Constable Surender Singh No.1535/C (PIS No.28880652) from the service with immediate effect. His absence period is also decided as period not spent on duty for all intents and purposes on the principle of No Work, No Pay and the same will not be regularized in any manner.
7. The applicant filed an appeal against the aforesaid order of the disciplinary authority on 30.05.2011. In the said appeal also, he has stated that he was suffering from jaundice for the last about one year and he remained absent from duty on accord of the said illness. He has also stated that he had intimated the aforesaid fact to the SHO of his Police Station several times and all the medical documents were also submitted to the SIP Branch. His condition was so bad that he was unable to get up from the bed. He has also stated that the entire responsibility of his family was upon him and he has a daughter of 15 years of age and her marriage is to be performed. He has, therefore, requested to reinstate him in service. However, the Appellate Authority rejected his appeal vide order dated 30.12.2011. The relevant part of the said order reads as under:-
Previously also the Applicant had remained absent on 31 different occasions and on some occasions he was warned/reprimanded but he did not mend his ways and kept on absenting himself wilfully and unauthorizedly.
A departmental enquiry was initiated against the appellant, Ex. Const. Surender Kumar, 1535/C vide order No.1830-39/HAP/AC-II/C dated 22.05.2010. The Enquiry Officer completed the departmental enquiry and submitted the findings concluded therein that the charge framed against the appellant stands fully proved. A copy of the findings was served upon the appellant for submitting his reply/representation. However, the appellant neither submitted a representation nor he appeared in O.R. Therefore, the disciplinary authority held the DE, ex-parte and awarded the punishment vide order appealed against.
Ex.Constable Surender Kumar, 1535/C, the appellant, was heard in Orderly Room. He pleased that due to jaundice, he could not attend the office, hence he was marked absent. He further requested for a lenient view stating that he has young/growing up daughters. The perusal of record available on file reveals that the appellant had not adopted the rules framed to avail such a long leave and remained absent from duty at his own will. In these circumstances, any relief given to him will give a wrong signal to other members of the force who are following rules. Hence, I find no reason to interfere with the order of punishing authority. Accordingly, the appeal is rejected.
Let the appellant be informed accordingly.
8. Challenging the aforesaid report of the Inquiry Officer and orders of the disciplinary and appellate authorities he has filed this OA on various grounds. First of all, he has submitted that he has already put in 23 years of service in the Delhi Police and he was a victim of the peculiar circumstances cropped up by his illness. He has also stated that he has submitted the medical certificates about his illness due to jaundice w.e.f. 03.03.2009 to 30.04.2011 for about 786 days but the respondents did not consider them. Again, according to him, even though he was served with the absentee notices dated 25.03.2009, 04.06.2009 and 14.12.2009 there was no indication in them with regard to specific dates on which he should have reported to the Chief Medical Officer, Distt. Alwar Rajasthan for second medical opinion. He has also argued that the onus was on the respondents to comply with the provisions of Rule 16 read with Rule 19(3) of the CCS (Leave) Rules, 1972. Again, according to him, during the inquiry proceedings, the prosecution witnesses PW-1 to W-4 before whom the medical documents were submitted did not put up before the Enquiry Officer or got them exhibited. He has also alleged that the departmental inquiry was perverse, arbitrary and full of mala fides. The PW-1 Balram, PW-2 Pramod Kumar, PW-3 HC Satpal Singh and PW-4 CT Manoj Kumar were examined on 29.12.2011 in one day. Therefore, he did not get the proper opportunity to either produce his medical documents pertaining to his illness or cross examine them. Further, he has submitted that the inquiry officers report was perverse and arbitrary to the effect that the applicant did not seek permission of the competent authority to remain on medical rest/medical documents pertaining to his medical treatment. The disciplinary authority ignored the fact of his illness. He has also ignored the medical documents of his illness handed over to respondent No.1 from time to time. The appellate authority has also not considered that he was suffering from jaundice and he was under the treatment from an ayurvedic dispensary in his native place in Rajasthan. The said authority also did not rely upon them at all and it is evident from its order which is violative of the principles of natural justice.
9. The respondents have filed their reply. They have reiterated the position as contained in the Charge, Inquiry Officers report, orders of the disciplinary and appellate authorities. They have also stated that the applicant had remained absent on 31 previous occasions for which he was reprimanded and did not mend his ways and again absented himself wilfully & unauthorisedly. His previous attendance record shows that he was a habitual absentee. They have also stated that the applicant submitted the photocopies of the medical rest w.e.f. 03.03.2009 and resumed his duty on 22.07.2009. He never submitted his original medical papers to the competent authority. They have also stated that under Rule 19(5) of the CCS (Leave) Rules, 1972 the grant of medical certificate does not confer upon the Govt. servant any right to leave. The medical certificates shall be forwarded to the authority competent to grant leave and orders of that authority shall be awaited.
10. We have heard the learned counsel for the applicant Shri S.C. Sagar and learned counsel for the respondents Shri Amit Anand. We have also perused the entire documents available on record of this OA. The admitted fact in this case is that the applicant was posted at PS Darya Ganj, Central District, Delhi on 03.03.2009. Without even application seeking sanction for leave, he left his place of duty and sent a medical certificate of the same date (03.03.2009) from Alwar Rajasthan according to which he was recommended for medical rest from 03.03.2009 to 17.03.2009. Though it is not impossible for one to reach Alwar from Delhi on the same date, we wonder what emergency the Applicant had to get medical help only from Alwar when as a responsible police official, how could he ever abandon his duty as well as his station of duty without even informing his superiors. He also did not consider necessary to inform his fellow police men that he was proceeding to his native place in Rajasthan. Further, it is seen that the alleged illness of the applicant was jaundice. The officials of Delhi Police are entitled for all medical facilities in Delhi. Apart from it, large number of Allopathic, Ayurvedic and Homeopathic Hospitals are available in Delhi. It is also not the case of the applicant that the Ayurvedic practitioner in Alwar is any extra-ordinary or exceptionally known ayurvedic doctor.
11. In our considered view, the applicant is a thoroughly indisciplined police official who does not bother about his duties. It also is revealed from his earlier leave record that he had absented himself from duty unauthorisedly on 31 occasions. A department like Delhi Police can hardly afford to have such an official on its roll. He is a liability to the department.
12. Rule 19(5) of the CCS (Leave) Rules, 1972 mandates that no leave shall be granted to a government servant until a report regarding its admissibility has been obtained from the authority maintaining the leave account. Rule 19(3) of the said rules requires that the authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of a Civil Surgeon or Staff Surgeon, to have the applicant medically examined on an earliest possible date. In the present case, when the Applicant was repeatedly asked to report to the Civil Medical Officer at Alwar Rajasthan for a second medical opinion, he refused to obey that order. In the statement of defence he has given the excuse that the authorities have not mentioned the date and time for him to meet the CMO.
13. The Apex Court was dealing with a similar case in its judgment in State of Punjab and Others v. Sukwinder Singh, (2007) 10 SC 511 wherein it was held as under:-
5. The High Court was right in noting that the respondent was a member of a disciplined force and that absence from duty was unbecoming of a member of such force. It was in that light that the High Court should have looked at the repeated acts of the respondent's absence from duty. The fact that the respondent is a member of the Scheduled Castes is neither here nor there for the purposes of considering whether or not he is guilty of misconduct and breach of discipline, nor the fact that he had gone to give his pay to his mother and was detained on account of her illness. It is necessary that members of the police forces should attend the duties which they have been allocated and not absent themselves. This is a paramount public interest that must overweigh private considerations. The High Court was, therefore, in patent error in looking benignly at the numerous acts of absence of the respondent.
6. That the order of dismissal did not use the "mantra" of "gravest act of misconduct" is not determinative. The substance of that conclusion is to be found in that order. When a policeman is repeatedly absent from duty, it cannot but be reasonably concluded that there is incorrigibility in his continued misconduct.
7. We are unable to accept the submission of learned counsel for the respondent that we should also take a lenient view of the matter in view of the circumstances that impelled the High Court to pass the order under challenge.
14. In view of the above facts and circumstances, we do not find any merit in this OA and accordingly the same is dismissed. There shall be no order as to costs.
( Shekhar Agarwal ) ( G George Paracken )
Member (A) Member (J)
/vb/