Central Administrative Tribunal - Delhi
Satish Kumar vs Comm. Of Police on 27 September, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 3494/2013
Reserved on 20.09.2018
Pronounced on 27.09.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
Hon'ble Mr. S.N.Terdal, Member (J)
Shri Satish Kumar,
S/o Shri Net Ram Singh,
R/0 798, Baba Faridpuri,
West Patel Nagar,
New Delhi-8 ... Applicant
(By Advocate: Mr. Ajesh Luthra)
VERSUS
1. Commissioner of Police,
Police Headquarters, MSO Building,
I.P. Estate, New Delhi.
2. The Joint Commissioner of Police,
(South-Western Range),
Police Headquarters, MS0 Building,
I.P. Estate, New Delhi.
3. Addl. Deputy Commissioner of Police
West District,
Office at P.S. Rajouri Garden,
New Delhi. ... Respondents
(By Advocate Mrs. Harvinder Oberoi)
ORDER
Hon'ble Mr. S.N. Terdal, Member (J):
We have heard Mr. Ajesh Luthra, counsel for applicant and Mrs. Harvinder Oberoi, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
2. In OA, the applicant has prayed for the following reliefs:
"(a) quash and set aside the impugned orders and direct the respondents to immediately reinstate him in service w.e.f.
the date of dismissal with all consequential benefits and 2 OA 3494/2013
(b) award costs of the proceedings and
(c) pass any other order / direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
3. The relevant facts of the case are that for being wilfully and unauthorizedly absent from duty for 2 years 10 days 5 hours 15 minutes and also for being unauthorizedly absent for another period of 4 months 22 days & 18 hours, summary of allegation was served on the applicant details of which are as follows:
"It is alleged against you, Constable Satish Kumar No. 1825/PCR (now No.2944/W), while posting in NDZ/PCR, were detailed for reserve duty in NDZ/PCR office from 8PM to 8AM on 16.04.2009 but you neither reported for duty nor sent any intimation regarding your whereabouts. You were marked absent vide DD No. 46 dated 16.04.2009, New Delhi Zone/PCR Delhi.
The following absentee notices have been issued to you with the direction to resume your duty at once failing which departmental action will be taken against you, but despite receiving absentee notices dated 4.10.2010, you did not resume your duty and running absent continuously, unauthorized and wilfully thereby violation of CCS (Leave) Rules, 1972 and S.O. No. 111 of Delhi Police.
1. No.1727/AC/R-Insp./NDZ/PCR dt.04.10.10 Received by him on 5.10.10.
2. No. 15266-68/SIP (AC)/PCR, dt. 25.10.10. - -
You resumed your duty on your sweet will vide DD No. 29 dated 25.04.2011, New Delhi Zone/PCR after absenting yourself for a period of 2 years 10 days 5 hours and 15 minutes wilfully and unauthorizedly. You were relieved on transfer from PCR to West Distt. Vide DD No. 45 dated 26.04.2011, PCR Line Model Town but you did not report in West District and remained absent. An absentee notice vide No. 4921-24/SIP (W) dated 23.8.2011 was issued to you but you were not found available at your home. You resumed your duty vide DD No.7 District Lines/West District dated 19.9.2011 after absenting yourself for a period of 4 months, 22 days & 18 hours unauthorizedly."
The above act on the part of you, Ct.Satish Kumar No. 1825/PCR (Now No. 2944/W), amounts to gross 3 OA 3494/2013 misconduct, carelessness, negligence and dereliction in the discharge of your official duties and also your activities are unbecoming of a member of disciplined force, which renders you liable to be dealt with departmentally under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980."
Alongwith summary of allegation, list of witnesses and list of documents were served on the applicant and as he did not plead guilty Inquiry officer was appointed. The Inquiry Officer following the principles of natural justice and the relevant applicable rules examined 7PWs and considered the defence statement of the applicant and held that the charges were proved. The disciplinary authority considering the representation of the applicant and hearing him in orderly room passed the impugned penalty order of dismissal from service. The appeal filed by the applicant was also dismissed by the appellate authority vide order dated 27.05.2013.
4. The counsel for the applicant vehemently contended that the inquiry officer has taken into account the past service of the applicant in violation of Rule 16(ix) of the Delhi Police (Punishment and Appeal) Rules, 1980 which reads as follows:-
"16(ix) if it is considered necessary to award a severe punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him and he shall be given opportunity to defend himself as required by rules."
In support of his submission he has relied upon the following judgments:
(i) State of Mysore Vs. K.Manche Gowda (1964 AIR 506). (ii) K.Natarajan Vs. Station Commander, Air Force (2007 (6) ALD 122) 4 OA 3494/2013
But, however, from the perusal of the entire enquiry report it is crystal clear that the applicant has not chosen to cross examine any of the 7 PWs. The inquiry officer has discussed all the defences raised by the applicant while recording his conclusion. The inquiry officer has indeed not relied upon or considered any "previous bad records" of the applicant. As rightly submitted by the counsel for the respondents, he has simply used the word "habitual absentee" with reference to his unauthorised absence for such a long periods of 2 years 10 days in one spell and four months 22 days second spell. The relevant portion of his conclusion is extracted below:
CONCLUSION In view of the above facts, I have gone through the statements of PWs and defence statement of delinquent Const.Satish Kumar No. 2944/W adduced during the DE proceedings which reveals that the delinquent is a habitual absentee, who was marked two times absent from the duty for a period of 2 years 10 days 5 hours & 15 minutes, second time for a period of 4 months 22 days & 18 hours. He did not produce any medical and treatment documents during the course of DE proceedings. Hence the charge levelled against the delinquent stands proved."
5. In view of the fact that the inquiry officer has indeed not relied upon nor considered any past records. The law laid down in the above referred cases relied upon by the counsel for the applicant do not come to the rescue of the applicant.
6. The applicant has produced several medical prescriptions for having taken treatment under private doctors running from pages 42 to 114 of the paper book. But, however, these prescriptions were not produced by the applicant in the departmental enquiry. 5 OA 3494/2013
7. The counsel for the applicant vehemently submitted that the applicant was ill and he was under medical treatment as such his absence was not wilful and not without reason. In support of his contention, the counsel for the applicant has relied upon the following judgments:
(i) Krushnakant B.Parmar Vs. Union of India & Anr.
( Civil Appeal No. 2106/2012)
(ii) Chhel Singh Vs. M.G.B. Gramin Bank Pali & Ors.
(Civil Appeal No. 6018 of 2014) But, however, while considering his representation and the enquiry report, the disciplinary authority has specifically recorded that the applicant has not intimated about his illness or about his treatment to the department either through his family members or through registered post or courier and he has not sought any permission for availing medical rests and hence in our opinion his unauthorised absence was wilful also. The relevant portion of the consideration of the disciplinary authority is extracted below:-
"I have carefully gone through the statements of PWs, exhibits, Defence statement & representation submitted by the defaulter and other material available on record with reference to the finding of the Enquiry Officer who concluded that the charge levelled against Constable Satish Kumar, No. 2944/W stands proved. The E.O in his finding has stated that the defaulter Constable Satish Kumar, No. 2944/W did not produce any defence witnesses in his defence. In response to the reply of finding he has produced some photocopies of medical papers issued from Dr. Ranjan Parti, Durga Medical Centre, Bhajan Pura, Delhi-53 to cover his absence period. He should have produce the Doctor in his defence during the DE proceeding but he did not produce any D.W in his defence. Had he been ill and under treatment in various hospitals, he should have sent his medical papers to the department through his family members or through registered post or courier and sought the required pre-requisite permission for availing the medical rest but he did not do so. During his absence period neither he informed the department regarding his whereabouts nor took any permission. Wilful 6 OA 3494/2013 and unauthorized absence from duty without any intimation for such a long period is a serious lapse on the part of the defaulter Constable Satish Kumar, No. 2944/W. He should have followed the procedure of availing medical rest/leave as laid down in CCS (Leave) Rules, 1972 as well S.O. No. 111 of Delhi Police. He is found completely unfit to be retained in discipline force. I find no reason to disagree with the findings of the E.O. This reflect that his absence for a period from 16.4.2009 to 25.4.2011 for a period of 2 years 10 days & 5 hours & 26.4.11 to 19.09.2011 (4 months 22 days & 18 hours) are purely unauthorized/wilful. On perusal of his service record, it is noticed that he had absented himself without any intimation to the department/competent authority in past service career and D.Es were also initiated against him earlier as well for unauthorized absence and he was awarded the punishment of Forfeiture of one year and 3 years service permanently and also Censured in twice by the office of DCP/PCR & South District respectively. The evidence came on record/D.E. file are also against the defaulter Constable. Police service is a disciplined service requiring total commitment and presence of the personnel and long absence from the duty without any valid reason strikes at the very discipline of the force. Absence from duty for such a long time affected the morale and discipline of other police personnel working in the force."
In our opinion in view of the peculiar facts of the case as recorded by the disciplinary authority that he has never intimated about his illness nor he has produced any document during the disciplinary proceedings as such the law down by the above said cases does not come to the rescue of the applicant. Though the disciplinary authority has referred to the penalty orders passed against the applicant earlier, but, however, from the reading of the extracted portion it is clear that the disciplinary authority mainly relied on the records in the instant departmental enquiry while passing the penalty order. We have perused the impugned orders passed by the disciplinary authority and the appellate authority. They are reasoned orders. 7 OA 3494/2013
8. In view of the facts and circumstances narrated above, the OA is devoid of merit. Accordingly, OA is dismissed. No order as to costs.
(S.N.Terdal) (Nita Chowdhury) Member (J) Member (A) 'sk'