Central Administrative Tribunal - Delhi
Jitender vs Comm. Of Police on 9 December, 2016
1 OA 3989/2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 3989/2012
Reserved on 20.08.2016
Pronounced on 09.12.2016
Hon'ble Mr. V.Ajay Kumar, Member (J)
Hon'ble Mr. V.N.Gaur, Member (A)
Jitender Singh,
No 3320/T (PIS No.28040102)
Age-35 years,
S/o Late Shrichand,
R/o VPO-Bachhod, Tehsil-Narnaul,
District-Mohindergarh, Haryana. ... Applicant
(By Advocate: Mr Sachin Chauhan )
VERSUS
1. Govt. of NCTD through
The Commissioner of Police,
Police Headquarters, I.P.Estate,
M.S.O. Building, New Delhi.
2. The Addl. Commissioner of Police,
Traffic, Police Headquarters,
MSO Building, IP Estate,
New Delhi. ... Respondents
( By Advocate : Mr. Anmol Pandita for Mr. Vijay Pandita)
ORDER
Hon'ble Mr. V.N.Gaur, Member (A):
A Departmental Enquiry (DE) was initiated against the applicant, a Police Constable in Delhi Police, by the Disciplinary Authority (DA) vide order dated 8.09.2010 on the charge of unauthorisedly absenting from duty, which was proved in the DE. A copy of the finding of the Enquiry Officer (EO) was served 2 OA 3989/2012 at the residence of the applicant on 13.03.2011 but he did not submit any representation. He was called for personal hearing by the DA on 31.03.2011 but could not be heard. According to the respondents he was asked to submit his representation and to resume his duty but he did not do that. He was again asked to appear in person on 05.04.2011 vide order dated 01.04.2011 by an order which was served at his residence (received by his brother) but the applicant did not appear for hearing. The DA thereafter passed an order on 8.04.2011 imposing the penalty of dismissal from service with immediate effect. The multiple periods of absence were also treated as 'not spent on duty'. The applicant submitted appeal to the Appellate Authority (AA) which was rejected vide order dated 12.08.2011. In this OA, the applicant has challenged the orders of the DA and AA and sought a direction to the respondents to reinstate him back in service with all consequential benefits including seniority, promotion, and pay and allowances.
2. The summary of allegations against the applicant read as follows:
"Ct. Jitender Singh No.3320-T (PIS No.28040102) while posted in Civil lines and Parliament Circles absented himself on the following occasions unauthorisedly, wilfully, and without any intimation to the department or without obtaining any permission of the competent authority. Absentee notices were issued to him vide this office No. 6240/SIP-T(D-III) dated 23.6.2009, 7591/SIP-T(D-III) dated 24.8.2009, 9211-14/SIP-T(D-III) dated 21.10.2009, 13_1-34/SIP-T(D- III) dated 15.2.2010, 4120-23/SIP-T(D-III) dated 28.5.2010 and 4776-
79/SIP-T(D-III) dated 19.6.2010 through SSP/Distt. Mahendergarh, Haryana as we was (sic.) registered post at his home address with the directions to resume his duty at case failing which departmental 3 OA 3989/2012 action will be taken against him. It was also directed in case of illness, he will report to the Medical Superintendent, Civil Hospital for medical examination. Absentee notice dated 5.11.2009 was served upon his mother as he was not available at his home through Satish Kumar No. 1969-T deputed from PTC Circle. The absentee notice dated 15.2.2010 was also served upon his brother namely Dharmender Kumar against his proper receipt as he was not available at his home through Jagdish No.1302-T deputed from PTC Circle:-
S.No. Date and DD No. Date and DD No. Period of absence A Of absence Of arrival Days Hrs Minutes n .
1. 17, dt. 6.6.2009 12, dt. 8.7.2009 32 - -
a2. 25,dt. 20.7.2009 32, dt. 25.8.2009 36 05 35 b3. 40, dt. 11.9.2009 09, dt. 13.12.2009 93 - -
s4. 21, dt. 3.2.2010 04, dt. 4.7.2010 151 02 20
e5. 21, dt. 15.7.2010 22, dt. 12.9.2010 58 06 20
n
An Absentee notice was issued to him vide this office No. 6070- 73/SIP-T(D-III) dated 23.7.2010. But he neither reported for duty till date nor sent any intimation about his unauthorised absence and running absent continuously since 15.7.2010 in contravention of CCS (Leave) Rules 1972 and S.O. No.111.
The above act on the part of Ct. Jitender Singh No.3320-T amount to gross misconduct, negligence, disobedience of lawful directions, unbecoming of a police officer, and dereliction in the discharge of his official duties, which render him liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980."
3. The applicant has challenged the impugned orders on the following grounds:
(1) The EO had conducted the enquiry ex-parte in violation of Rule 18 of Delhi Police (Punishment and Appeal) Rules, 1980 despite the fact that the applicant neither avoided nor refused to attend the departmental enquiry.
(2) The EO never proved the absentee notices sent by the department.4 OA 3989/2012
(3) The EO never proved that any reminder or notices were sent to the applicant for producing defence witnesses and defence statement.
(4) The AA did not consider the medical documents that were submitted along with his appeal as also the fact that he could not submit his defence statement and representation because of his continued sickness.
(5) The absence because of the medical reasons cannot be treated as unauthorised and wilful and, therefore, there was no misconduct.
(6) The penalty of dismissal was disproportionate to the alleged misconduct as has been held in Ex. HC Rajender Singh Vs. Union of India and Ors (2008) Vol.II SLJ Delhi High Court 35)
4. The learned counsel for the applicant submitted that the applicant had initially participated in the DE but after the examination of prosecution witnesses, he could not participate because of his poor health. The EO, however, continued with the enquiry without waiting for the applicant to produce defence witnesses. The applicant could not avail of the opportunity of representing against the report of the EO also. However, after recovering from his illness he submitted a detailed appeal in which he explained the reasons for his absence by enclosing the medical certificates covering the entire period of his absence. He 5 OA 3989/2012 had taken the grounds of penalty being disproportionate, and that the service of the absentee notices on the applicant had not been proved in the DE. Further the penalty of dismissal from service in terms of Rule 8(a) and 10 of Delhi Police (Punishment and Appeal) Rules, 1980 can be awarded only when a police person has been found to be completely unfit for the police services. In his case, no such finding has been given by the EO or DA. The AA, however, failed to consider the grounds raised by the applicant in his appeal, which is a statutory right the applicant. The order of the AA was liable to be quashed on this ground alone. He also questioned the order of the DA on the ground that it takes into account "future absence'' while passing the order dated 08.04.2011. The allegation of unauthorised absence against the applicant was in respect of different spells between 6.06.2009 and 12.09.2010 but the order of the DA takes cognizance of the absence of the applicant from 13.09.2010 to the date of passing order (08.04.2011) also by stating that the applicant was "still running absent''. The absentee notices served to the applicant did not cover the period from 13.09.2010 onwards and, therefore, the order of the DA was vitiated. Learned counsel referred to the order of this Tribunal in OA no. 1048/1999 dated 27.11.2000. He also stated that since the applicant fell ill all of a sudden, the question of any prior permission for proceeding on leave did not arise and such 6 OA 3989/2012 absence cannot be labelled as unauthorised and wilful. The respondents could not have rejected the medical certificates submitted by the applicant on their own because it is a settled law that if they had any doubt, the same should have been referred for second medical opinion which was not done.
5. The learned counsel for the respondents submitted that the applicant was a member of disciplined force and he was bound by the rules and regulations of the department. He absented from duty without any approval or intimation and not one occasion but on several occasions. The respondents had given him ample opportunity to resume duty by issuing absentee notices which were served at his home address. It is on record that once it was served to his mother and on another occasion to his brother. The messenger who visited his house was never informed about his illness. The applicant initially participated in the DE but after the evidence of Prosecution Witnesses (PWs), he refused to produce any Defence Witnesses (DWs) and did not participate in the proceedings any further. He also did not submit any representation on the findings of the EO. At this stage, the applicant cannot take a plea that he was denied opportunity to produce DWs or to produce defence statement. The EO had followed the laid down procedure for conducting the enquiry and it was for the applicant to have availed the opportunity to defend himself. The learned counsel also refuted the argument that the 7 OA 3989/2012 DE had gone beyond the period of absence for which it was started. It was mentioned that absence of the applicant till the date of DE was part of the charge that was relevant during the DE. It was also asked to appear before Medical Superintendent, Civil Hospital for medical examination but he neither complied with that direction nor reported for duty. The learned counsel further stated that the AA had given him a personal hearing on 29.07.2011 and considered the pleas of the appellant but did not find any merit in the appeal. The learned counsel accordingly prayed for dismissal of the OA. The applicant in his appeal also, which is filed as Annexure A-4 to the OA, has reproduced the table showing the period of unauthorised absence, as alleged by the department. In this table the last column shows the period of absence as 15.07.2010 to "still running absent". Once the applicant had been made aware that the charge was of his continuing absence his plea that he could not have defended himself against a charge of "future absence" is baseless.
6. We have heard learned counsel for the parties and perused the record. The main grounds taken by the applicant while questioning the impugned orders are:
(1) The disciplinary proceedings were not conducted in accordance with the rules and it was virtually an ex-
parte proceedings.
(2) Absentee notices were not proved.
8 OA 3989/2012(3) The DA has taken into account "future absence" of the applicant while imposing the penalty of dismissal. (4) The AA has not considered the medical certificates submitted by the applicant covering the period of alleged unauthorised absence.
(5) A medical certificate cannot be rejected without the advice of the medical officer.
(6) The Courts have repeatedly held that in the case of unauthorised absence from duty the penalty of dismissal was disproportionate.
7. The facts of the case show that the applicant had participated in the DE initially. The PW-1, PW-3 and PW-4 were produced by the prosecution to prove that absentee notices were given to them for service on the applicant; they had visited his native place but not finding him at his residence handed over the absentee notices to his brother or mother. A notice was also served through SSP, Mahendergarh. The applicant was given opportunity to cross-examine these PWs but he did not do so. Thus the averment of the respondents that the absentee notices were served by the PWs went unchallenged. After framing the charge on 6.01.2011, the applicant was given opportunity to produce defence witnesses which he declined. Since the applicant participated in the DE in the beginning, was present in DE on 8.01.2011 and received a copy of the chargesheet but did not 9 OA 3989/2012 raise objections regarding not proving of documents, avoided cross examination of PWs, declined opportunity to produce defence witnesses, refused to submit his defence statement and did not submit even representation on the report of the DE he cannot now take a plea that he was not served any letter asking him to submit his defence statement or the DE was conducted ex-parte. With regard to the contention of consideration of "future absence" by DA, the absentee notice dated 15.07.2010 which was served on his brother against proper receipt indicated the last period of his absence to be from 15.07.2010 to "still running absent". The same phrase has been reproduced in the order of DA. We, therefore, do not find this to be a factor that would vitiate the order of DA.
8. The learned counsel for the applicant placed considerable emphasis on the fact that alongwith his appeal the applicant had produced medical certificates covering the entire period of his absence but the same was not considered by AA. The question is whether the AA was bound to consider these medical certificates produced at the stage of appeal. The applicant was absent for various periods during 6.6.2009 to 04.07.2010 and from 15.07.2010 he was "still running absent". All the medical certificates have been issued on various dates in the year 2009 and 2010. The DE was conducted from 9.11.2010 onwards. From the dates of the medical certificates it is apparent that all the 10 OA 3989/2012 medical certificates attached to the appeal have been issued before the DE had started. The applicant has not given any reason as to why, when he was present during the examination of PWs, he could not produce these certificates before the EO. The reason given by the learned counsel for the applicant that the applicant was so sick that he could not submit his defence statement and also representation on the report of EO is totally unconvincing because the applicant was present in the DE on several dates and the medical certificates, if they carry correct dates, should have been in the hands of the applicant and he should have availed of the opportunity to prove his innocence. The AA is not expected to consider the primary evidence which should have been produced and proved before the EO especially when the documents were available to the applicant before the DE started. With regard to rejection of the medical certificates without making any reference to the medical authority it is noted that firstly the medical certificates were never produced before the appropriate authority and therefore, cannot be said to have been rejected. Secondly, the applicant was asked in the absentee notice served also through SSP, Mahendergarh to get himself examined by the Medical Superintendent, Civil Hospital if he was sick. The applicant failed to comply with the same. This has not been denied in the rejoinder. Having not availed of the opportunity of getting himself medically examined the applicant 11 OA 3989/2012 cannot now raise a technical objection arising out of his defiance of the direction given by the department.
9. We have considered the order of this Tribunal in OA 1048/2009. However, the same does not appear to be applicable in the present case, since the facts of the case are quite different. The DA in that case had taken into account further absence of the applicant on about 15 occasions after the period of absence which had been made the basis of the charge framed against him. In the present case, there is only a mention of the fact that the applicant had not joined the department till the date of passing the order. This fact has not been denied by the applicant also. Therefore, the aforementioned order is not of any help to the applicant.
10. Placing reliance on Ex. HC Constable Rajender Singh (supra) the applicant has contended that the unauthorised absence is not a serious charge to deprive the applicant of his pension. We have considered this argument and find that the facts and circumstances of the aforementioned case are not comparable. The petitioner in the case of Ex. HC Constable Rajender Singh (supra) was a Head Constable of CRPF who had committed an offence u/S 11 (1) of CRPF Act as he was found absent from duty place without any knowledge/prior permission of competent authority. He also consumed alcohol and was 12 OA 3989/2012 found under intoxication. While concluding that the penalty of dismissal imposed on the petitioner was disproportionate and remanding the matter back to the DG, CRPF, the Hon'ble High Court had noted that the applicant had put in more than 23 years of service and his request for voluntary retirement had already been granted by the competent authority prior to the date of alleged incident. In the peculiar circumstances of that case, the High Court had come to the conclusion that depriving the petitioner of his pension was too harsh. It was further observed that "dismissal from service of a person, who has not yet earned pension, may not be so harsh as is dismissal of one, who has already earned such a right. What makes the punishment unduly disproportionate and harsh is the forfeiture of rights which the delinquent has acquired by reason of his long service. Cutting short his tenure in the service may be one facet of the order of dismissal but more severe than that is the denial to him and his family sustenance for the rest of their lives. We are, therefore, of the considered opinion that the punishment by way of dismissal from service was, in the instant case, totally disproportionate to the gravity of the offence committed by the petitioner."
11. In the present case the applicant had joined service on 15.06.2004 and his first unauthorised absence pertains to period 06.06.2009 to 08.07.2009. The applicant had completed about 5 years of service when he started abstaining from duty. The ratio 13 OA 3989/2012 of Ex. HC Rajender Singh (supra), therefore, is not applicable in the present case.
12. In State of U.P Vs. Ashok Kumar Singh, 1996 (1) SCC 302, the Hon'ble Supreme Court has taken a view that while considering the misconduct of unauthorised absence, the fact that the delinquent belongs to a discipline force has also to be kept in view. The penalty of dismissal from service cannot be treated as not commensurate with the gravity of the charge, the relevant portion of the judgment of Hon'ble Supreme Court is reproduced hereinbelow:-
"8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observations that 'his absence from duty would not amount to such a grave charge'. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that 'the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out."
13. In the light of the preceding discussion, we do not find any valid ground that would justify interference by this Tribunal in the quantum of penalty imposed by the DA. The respondents duly following the procedure as laid down in the Delhi Police (Punishment and Appeal) Rules, 1980 had conducted the DE, giving the applicant full opportunity to defend himself but the 14 OA 3989/2012 applicant on his own chose to let it go. It is trite that the jurisdiction of the Tribunal is limited to review the manner in which the concerned authorities have taken the decision and whether the principles of natural justice have been followed.
14. In B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, the Three Judge Bench of Hon'ble Apex Court held that the judicial review is not an appeal from a decision but a review of the manner in which the decision has been made. Powers of judicial review is exercised to ensure that the individual receives a fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. Relevant portion of the said judgment reads as under:-
"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC
364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
14. In Union of India v. S. L. Abbas (1993) 4 SCC 357 :(1993 AIR SCW 1753), when the order of transfer was interfered by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with order of transfer of a Government servant. In Administrator of Dadra & Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551 : (1992 AIR SCW 2830), it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant, recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT 15 OA 3989/2012 (SC) 217 : (1994 AIR SCW 1465), a Bench of this Court to which two of us (B. P. Jeevan Reddy & B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
15. It is, therefore, difficult to go into the question whether the appellant was in possession of property disproportionate to the known source of his income. The finding of the disciplinary authority and that of Inquiry Officer are based on evidence collected during the inquiry.
They reached the findings that the appellant was in possession of Rs.30,000/- in excess of his satisfactorily accounted for assets from his known source of income. The alleged gifts to his wife as stridhana and to his children on their birthday were disbelieved. It is within the exclusive domain of the disciplinary authority to reach that conclusion. There is evidence in that behalf.
16. It is true a three-Judge Bench of this Court in Krishanand's case (supra) (AIR 1977 SC 796), held in para 33, that if the excess was comparatively small (it was less than 10% of the total income in that case), it would be right to hold that the assets found in the possession of the accused were not disproportionate to his known source of income raising the presumption under sub-section (3) of Section 5. It is to be remembered that the said principle was evolved by this Court to give benefit of doubt, due to inflationary trend in the appreciation of the value of the assets. The benefit thereof appears to be the maximum. The reason being that if the percentage begins to rise in each case, it gets extended till it reaches the level of incredulity to give the benefit of doubt. It would, therefore, be inappropriate, indeed undesirable, to extend the principle of deduction beyond 10% in calculating disproportionate assets of a delinquent officer. The salary of his wife was not included in the assets of the appellant. The alleged stridhana of his wife and fixed deposits or gifts of his daughter, in appreciation of evidence, were held to be the property of the appellant. It is in the domain of appreciation of evidence. The Court/Tribunal has no power to appreciate the evidence and reach its own contra conclusions."
15. In view of the foregoing, we do not find any merit in the OA and the same is dismissed as such. No costs.
16 OA 3989/2012
( V.N.Gaur ) (V.Ajay Kumar) Member (A) Member (J) 'sk' 09th December, 2016