Delhi High Court
Sudesh Kumar, Constable vs Union Of India (Uoi) Through ... on 11 October, 2002
Equivalent citations: 2003(68)DRJ321
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Anil Dev Singh, J.
1. This writ petition impugns the order of the Central Administrative Tribunal, Principal Bench, New Delhi, O.A. No. 835/2000 dated March 2, 2001 whereby the application of the petitioner challenging his termination from service stands rejected. The facts giving rise to the petition are as follows:-
2. The petitioner was a Constable in the Delhi Police. He proceeded on casual leave which expired on March 8, 1994. After availing the casual leave the petitoenr was requied to joint duty on March 9, 1994, but he absented himself and was consequently marked absent vide D.D. No. 56B of Police Station Greater Kailash. Not only the petitioner did not join duty on March 9, 1994, he remained absent for a period of about three years w.e.f. March, 9, 1994 to March 5, 1997. Since the petitioner remained absent disciplinary proceedings were imitated against him. On march 5, 1997, the petitioner resumed duty and participated in the departmental proceedings. The Enquiry Officer on the basis of the evidence on record including the statements of the witnesses found the misconduct of the petitioner fully proved. The disciplinary authority on the basis of the enquiry report dismissed the petitioner from service by its order dated March 7, 1998. While passing the order the disciplinary authority observed inter alia that the petitioner was not fit for disciplined force and was totally incorrigible. The petitioner being aggrieved by the order passed by the disciplinary authority preferred an appeal to the Additional Commissioner of Police. The Additional Commissioner of Police upheld the order passed by the disciplinary authority and consequently rejected the appeal of the petitioner by its order dated December 1, 1998. Thereafter, the petitioner filed a revision petition against the above orders before the Commissioner of Police. The revision also met the same fate and was dismissed on March 2, 2001.
3. Being aggrieved by the orders passed by the disciplinary authority, the appellate authority and the revisional authority, the petitioner filed O.A. No. 835/2000 before the Central Administrative Tribunal, Principal Bench, New Delhi. As already pointed out, the Central Administrative Tribunal, Principal Bench, New Delhi, dismissed the application on March 2, 2001. Dissatisfied with the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi, the petitioner has filed the instant writ petition.
4. The learned counsel for the petitioner submitted that the order of dismissal of the petitioner is illegal inasmuch as the period of absence from service has been treated by the disciplinary authoirty as leave without pay for all purposes. According to him, the order dismissing the petitioner from service is nullified since the period of absence has been treated as leave without pay. In support of his submission, the learned counsel has relied upon the decision of the Supreme Court in State of Punjab and Ors. v. Bakshish Singh , .
5. We have considered the submission of the learned counsel. We regret our inability to accept the same. It is more than clear from the order of the disciplinary authoirty that it did not condone the misconduct of the petitioner in remaining absent from service for a period of about three years. In order to appreciate import of the order it is necessary to quote the relevant part thereof:-
"After carefully perusing the D.E. file, statement of PWs, DWs, finding of E.O. as well as other relevant material brought on the DE file and also the statement of Dr. B.R. Bhankar (Homeopath). feel that there is a lot of Grey area in the defense statement of the said Homeopath and I am not convinced. The constable defaulter was not so handicapped that he could not intimate the reason of his absence to the department. If the disease was so severe than automatically he should have gone for allopathic treatment in All India Institute of Medical Sciences or some similarly reputed Government Hospital which he did not do. Why? I am not satisfied with the explanation offered by the defaulter as well as the statements of Dr. B.R. Chankar. His absence is of about 3 year and 1 month. I fail to understand as to how his so called giddiness and nausea could have prevented him form joining duty for such a long period continuously. Using my considered impression about the whole issue, I am inclined to feel that the defaulter is not fit for a disciplined force and need not be retained as he will set a very bad example to others. I find him totally incorrigible and keeping his back ground in mind I, A.A. Siddiqui, Dy. Commissioner of Police, 5th BN. DAP, Delhi, dismiss Const. Sudesh Kumar, No. 4782/DAP from the service with immediate effect. His absence period from 9.3.94 to 5.3.97 is hereby treated leave without pay for all intents and purposes".
6. As is clear from above, the tenor of the order clearly shows that a serious view of the misconduct of the petitioner was taken by the disciplinary authority. In view of the long absence the disciplinary authority felt that the petitioner was not fit to be retained in a disciplined force as he will set a bad example for others. The Disciplinary Authority also found him totally incorrigible and keeping his background in mind he passed an order dismissing the petitioner from service with immediate effect. The mere fact that the period of his absence was treated as leave without pay cannot be construed as nullifying the order of dismissal. It also needs to be pointed out that the order treating his absence as leave without pay was made subsequent to the order terminating his employment only for the purposes of maintaining correct record of duration of service and adjustment of leave due to the petitioner. In State of Madhya Pradesh v. Harishar Gopal , 1969 S.L.R. 274, a similar situation arose. The Supreme Court opined that it was difficult to hold that the authority after terminating the employment of the respondent intended to pass an order invalidating the earlier order by sanctioning the leave. In this regard the Supreme Court observed as follows:-
".....The order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service, and adjustment of leave due to the respondent and for regularizing his absence from duty. Our attention has not been invited to any rules governing the respondent's service conditions under which an order regularising absence from duty subsequent to termination of employment has the effect of invalidating termination. Both the orders, one terminating the employment of the respondent, and the other granting leave are made "by order and in the name of the Governor of Madhya Pradesh", and they are signed by L.B. Sarje, Deputy Secretary to the Government of Madhya Pradesh, General Administration Department. We are unable to hold that the authority after terminating the employment of the respondent intended to pass an order invalidating the earlier order by sanctioning leave so that the respondent was to be deemed not to have remained absent from duty without leave duly granted."
7. The petitioner, however, relied upon a decision of the Supreme Court in Bakshish Singh's case (supra). This Court in Deputy Commissioner of Police v. Ex. Constable Karan Singh and Anr. , dealt with similar argument based on the decision of the Supreme Court in Bakshish Singh's case as had been advanced by the petitioner in the instant case. Drawing upon the facts of the Bakshish Singh's case it was noticed by us that the Supreme Court was dealing with the question whether it was open to the first appellate court to remit the matter to the punishing authority in view of the findings of fact arrived at by the trial court and not disturbed by the appellate court. We also noticed that the Supreme Court was not dealing with the proposition of law already settled by Harihar Gopal's case (supra) which holds the field even today as having not been overruled by any subsequent decisions thereof. In this regard it was observed by us as follows:-
" Bakshish Singh's case arose form a suit filed before the Sub-Judge, Jalandhar, for a declaration to the effect that the order dated 11th January, 1990 passed by the Inspector General of Police, PAP, Jalandhar Cantt. by virtue of which his revision petition was rejected and the order dated 6th January, 1989 passed by the DIG PAP (Admn.) Jalandhar Cantt. and the order dated 1.6.1988 passed by the Commandant, 80th Bn. PAP, Jalandhar Cantt. dismissing him form service were confirmed, were illegal.
The suit was decreed and, in appeal, the Additional District Judge, jalandhar, by his order dated 15th January, 1996, took note of the various judgments as also the judgment of the Supreme Court in Harihar Gopal's case (supra). The decision of the Supreme Court in Harihar Gopal's case was distinguished by the Additional District Judge on the ground that the order regularising leave without pay was made after terminating the employment and that it was made only for the purpose of maintaining correct record of duration of service. It needs to be highlighted that the order granting leave was made subsequent to the order terminating the employment. Both the orders were passed separately and not rolled into one. In other words, it was not a case of composite order. In Bakshish Singh's case , however, the District Judge will concurring with the view of the trial court found on the facts of that case that the absence of the official was regularised by the administrative authority and the charge of absence from duty did not survive. In spite of having arrived at the conclusion that the charge of absence from duty did not survive, the District Judge proceeded to consider the question whether or not absence of the official from duty was a misconduct of gravest kind so as to warrant the maximum penalty of dismissal from service or was it a bare misconduct for which lesser punishment would be appropriate. The District Judge having found that it was not a case of misconduct of gravest kind remanded the case to the punishing authority for passing a fresh order of punishment. Aggrieved by the order of the first appellate court, the State of Punjab moved the High Court, by way of a Regular Second Appeal No. 1555 of 1996. The High Court, by its judgment and order dated 21st August, 1996, dismissed the Regular Second Appeal of the State of Punjab without a speaking order. This led the State of Punjab to move the Supreme Court under Article 136 of the Constitution which came to be disposed of by the Supreme Court as Appeal No. 4212 of 1997. The Supreme Court, taking note of the findings of the fact arrived at by the trial court and the lower appellate court, namely, that the charge of absence from duty did not survive, went on to hold that the lower appellate court was not right in remanding the matter to the punishing authority. The Supreme Court also noted that the trial court had returned a finding of fact that proper opportunity of hearing was not given and signatures were obtained under duress during the departmental proceedings which findings were neither adverted to nor disputed by the first appellate court. It appears to us that in view of the aforesaid findings of fact the Supreme Court held that there was no occasion to remand the matter to the punishing authority for passing a fresh order of punishment. In this regard the Supreme Court observed as follows:-
"It will thus be seen that the trial court as also the lower appellate court both had recorded the findings that the period of absence form duty having been regularized and converted into leave without pay, the charge of absence from duty did not survive. Once it was found as a fact (emphasis supplied) that the charge of unauthorised absence from duty did not survive, we fail to appreciate how the lower appellate court could remand the matter back to the punishing authority for passing a fresh order of punishment. In the face of these findings especially the finding of the trial court that proper opportunity of hearing was not given and the signatures of the respondent were obtained under duress during the departmental proceedings which the not been set aside the lower appellate court, we are of the view that there was no occasion to remand the case back to the punishing authority merely for passing a fresh order of punishment."
Therefore, it is clear that in Bakshish Singh's case (supra) the Supreme Court was dealing with the question whether it was open to the first appellate court to remit the matter to the punishing authority in view of findings of fact arrived at by the trial court and not disturbed by the appellate court. The Supreme Court was not dealing with a proposition of law already settled by Harihar Gopal's case and has not overruled the same. To say the least the Supreme Court could not in Bakshish Singh's case be understood to have done so without adverting to its earlier decision in Harihar Goapl's case ...."
8. Having regard to the aforesaid observations of this Court, we are of the opinion that Bakshish Singh's case (supra) was decided on its own fact situation and turns on the question of proper opportunity of hearing not being afforded to the respondent in the departmental proceedings.
9. In view of the aforesaid discussion, we find no merit in the writ petition. Accordingly, the same is dismissed.