Central Administrative Tribunal - Delhi
Ex. Constable Rajender Kumar S/O Shri ... vs Govt. Of N.C.T.D. Through Commissioner ... on 5 April, 2007
ORDER
V.K. Bali, J. (Chairman)
1. Ex. Constable Rajender Kumar, the applicant herein, has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, challenging an order dated 13.1.2004 (Annexure A/3). He has also challenged the orders dated 17.11.2004 and 21.7.2005 (Annexures A/1 and A/2 respectively) and in consequence to setting aside of the orders aforesaid, he seeks direction to the respondents to re-instate him in service with all consequential benefits.
2. Brief facts of the case reveal that the applicant was appointed as a Constable in Delhi Police in 1995 and as per his version was having satisfactory service record. He was dealt with departmentally on the allegation of being wilfully and unauthorizedly absent from duty on four different occasions. It is the case of the applicant that he never absented from duty on his own sweet will and it was the mitigating circumstances due to his illness, for which he could not be blamed. The illness is a factor, which is beyond his control and for that reason, he could not be held guilty for the charge framed against him. The Enquiry Officer, however, without considering medical certificates submitted by him, covering the period of alleged absence, held the charge of unauthorized and wilful absence as proved. The Disciplinary Authority imposed the extreme punishment of dismissal from service on the charge of unauthorized and wilful absence, and statutory appeal filed against the order passed by the Disciplinary Authority was dismissed. The order of dismissal passed by Disciplinary Authority and affirmed by Appellate Authority has since been challenged in the present OA.
3. During the course of arguments, Shri Sachin Chauhan, learned Counsel representing the applicant, vehemently contends that the concerned authorities did not apply their mind to the basic and the only defence projected by the applicant pertaining to his sickness and, therefore, the impugned orders need to be quashed by this Tribunal.
4. Mrs. Renu George, learned Counsel defending the respondents, however, contends that the basic charge against the applicant was that he had not given any intimation before he left the place of his duty and in as much as, there is no denial to this charge, the impugned orders need not be interfered by this Tribunal.
5. We have heard learned Counsel for the parties and with their assistance, examined the records of the case. The order (Annexure A/1) dated 17.11.2004 passed by the Disciplinary Authority would reveal that departmental enquiry was held against the applicant under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980, on the allegation that while posted in SIT Section/Special Team of Crime & Railways, he absented himself from the duty on the following occasions willfully and unauthorisedly without any information:
Period of absence Days Hours Minutes
1. 3, dated 25.7.2001
4, dated 27.8.2001 33 01 35
2. 2, dated 11.10.2001
2, dated 7.1.2002 88 -- --
3. 5, dated 2.3.2002
5, dated 1.4.2002 30 01 05
4. 10, dated 2.4.2002
9, dated 14.5.2002 42 04 --
Total 193 06 40
6. Insofar the defence projected by the applicant with regard to his ailment is concerned, the Disciplinary Authority observed as follows:
I have perused the entire departmental enquiry file alongwith the statements of P.Ws and exhibits. In order to cover up his absence for the period from 25.7.01 to 27.8.01, 2.3.2002 to 1.4.2002 and 2.4.2002 to 14.5.2002, he had produced medical certificates given by the Senior Medical Officer, Community Health Centre, Bandikui, Dosa (Rajasthan). Mere production of these certificates does not serve the purpose. In case he was actually ill he could have got the leave sanctioned from the competent authority by sending application together with the medical certificate as required under C.C.S. (Leave) Rules, 1980 and S.O. No. 111 of this Deptt., but he did not do so and remained absent willfully and unauthorisedly on the said three occasions. He was given ample opportunity by the enquiry officer during the course of departmental enquiry proceedings to produce his defence, but he did not do so and rather begged pardon for the alleged misconduct. He remained absent even for the period from 11.10.2001 to 7.1.2002 i.e. for 88 days without any leave/intimation to the department.
While holding the charge proved against the applicant, it was further observed by the Disciplinary Authority as follows:
Unauthorised and wilful absence for such long periods, time and again particularly in a disciplined force is the gravest form of misconduct and indiscipline. The charge of unauthorized and wilful absence from duty against the defaulter Const. has been proved in the departmental enquiry. The previous absentee record as well as the absence in this departmental enquiry shows that the defaulter Const. is a habitual absentee and incorrigible type of police personnel, despite ample opportunities given to him. Such absenteeism on his part in flagrant violation of Standing Order No. 111 and Central Civil Service (Leave) Rules, 1972 is absolutely unacceptable in a disciplined force. He has proved to be a highly undisciplined person and he has no regard for the rules/instructions of the department. Such gravest misconduct renders him absolutely unfit for retention in Delhi Police.
The Appellate Authority while dealing with the appeal filed by the applicant against an order of the Disciplinary Authority (Annexure A/1) mentioned that allegation against the applicant was that while posted in SIT Section/Special Team of Crime & Railways, he absented himself from duty willfully, unauthorisedly and without any information to the department on the occasions, as already mentioned above.
7. The plea of sickness of the applicant was repelled by the Appellate Authority by observing thus:
The contentions of the appellant have no force. The appellant absented himself on 4 different occasions for a period 193 days, 06 hrs. and 40 minutes willfully & unauthorisedly which is in violation of CCS (Leave) Rules, 1972 and SO No. 111 of Delhi Police. These rules state that merely obtaining of medical rest does not itself confer any right to an individual to avail the same until and unless permitted by the competent authority. He, being a Govt. servant, is supposed to stick to rules and regulations at every stage of his duties. The EO completed the DE in accordance with rules and rightly concluded the appellant's guilty of the charge on the basis of evidence came during the DE proceedings, which is quite legal.
8. A perusal of the record and, particularly, the order passed by the Disciplinary Authority, as mentioned above, would clearly manifest that charge against the applicant was with regard to absence from duty willfully, unauthorisedly and without any information to the department.
9. So far as contention of learned Counsel representing the respondents that the applicant had not denied going on leave without seeking prior permission is concerned, it has to be accepted. While holding so, however, the fact that cannot be lost sight of is that the defence projected by the applicant was not properly considered. It is significant to mention that the fact that the applicant was actually sick and unable to attend to his duties at least during three out of four periods mentioned above stands admitted in the Counter Affidavit filed on behalf of the respondents.
10. Para 4 (x) of the present Original Application reads as follows:
That the inquiry officer of the disciplinary authority is not at all the competent person to comment upon the genuinity and authenticity of the medical certificates and if any doubt then in that case the same has to be referred to the competent authority and then only in relation to the medical documents any final opinion can be arrived by the inquiry officer or disciplinary authority in a case where the genuinity and authenticity of the medical documents is doubted but the same is not referred to any medical authority.
In the corresponding para of the Counter Affidavit filed on behalf of the respondents, it has been mentioned as follows:
Contents of para 4(x) of the OA is no reply as the genuineness of medical certificates produced by the applicant are not disputed in this case.
11. Once, the genuineness of medical certificates produced by the applicant is not in dispute, even though the charge of going on leave unauthorisedly, i.e. without informing the concerned authority and absence from duty for one out of four periods may have been proved, the impugned orders shall have yet to be set aside as surely, while inflicting the extreme penalty of dismissal from service, the concerned authorities had returned a finding of wilful absence from duty on all the four occasions. It is possible that proof of charge of going on leave without information to the concerned authority and wilful absence from duty, not supported by a medical certificate, on one occasion may have occasioned, in consideration by the concerned authority, a lesser punishment. This Tribunal will not take upon to itself duties/role of departmental authorities in the matter of quantum of punishment. Such an exercise has necessarily to be done by the Disciplinary Authority. Once, it is found that it is only a part of the charge which is proved, whereas the punishment was inflicted by considering the entire charge as proved, this Tribunal would have no option except to set aside the impugned orders with liberty to the respondents to once again apply its mind in the matter of quantum of punishment by considering that only a part of the charge to the extent, as mentioned above, stood proved. We order accordingly. In view of partial success of the case, there shall be no order as to costs.