Central Administrative Tribunal - Delhi
Si Sunil Tanwar vs Gnct Of Delhi on 9 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1830/2007 New Delhi this the 9th day of November, 2010. Honble Mr. L.K.Joshi, Vice Chairman (A) Honble Dr. Dharam Paul Sharma, Member (J) SI Sunil Tanwar (D-3517, PIS no. 16940012) S/o Shri R.S.Tanwar, r/o Pocket-A/31-B, Vikaspuri Extension, New Delhi-110018. Applicant (By Advocate Shri Sourabh Ahuja) VERSUS 1. GNCT of Delhi, Through Chief Secretary, Delhi Secretariat, Near ITO, New Delhi. 2. Commissioner of Police, Police Head Quarters, IP Estate, MSO Building, New Delhi. 3. Joint Commissioner of Police, New Delhi Range, through Police Head Quarters, IP Estate, MSO Building, New Delhi. 4. Deputy Commissioner of Police, New Delhi District, Police Head Quarters, IP Estate, MSO Building, New Delhi. Respondents (By Advocate Shri Aman Deep Joshi for Ms. Jyoti Singh ) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
Sh. Sunil Tanwar, former Sub-Inspector of Delhi Police, The Applicant herein, was awarded the sentence of removal from service by the order dated 27.09.2005 of the disciplinary authority, the fourth Respondent in this OA. The appeal preferred by the Applicant did not find favour with the appellate authority, the third Respondent. These orders have been assailed in this OA. The OA had earlier been heard by this Tribunal and decided by judgement dated 29.06.2009, wherein the OA was allowed and the impugned orders were quashed and set aside. The aforesaid order was challenged before the Delhi High Court in WP ) No. 12143 of 2009. The High Court remanded the case back to the Tribunal with the following observations:
1. It being an undisputed position that the Tribunal has not considered the gravamen of the allegation pertaining to the unauthorized absence from 10.9.2004 till 27.9.2005 (it be clarified that as per the charge sheet which was issued on 10.3.2005 the absence was from 10.9.2004 till the date the charge sheet was issued and that the Inquiry Officer has held that even till date of the inquiry report the delinquent had not joined back); there is no finding recorded by the Tribunal.
2. Under the circumstances learned counsel for the parties consent that the instant petition be disposed of with the following directions:-
(i) The Tribunal would consider the gravamen of the allegations, stated to be proved, for unauthorized absence effected from 10.9.2004 till the date the charge sheet was issued and which continued till the date final order dated 27.9.2005 was passed by the Disciplinary Authority.
(ii) The findings returned by the Tribunal pertaining to the earlier 3 periods of absence, if they survive for consideration, should the Tribunal exonerate the respondent qua the 4th period of absence, would be amenable to further challenge by the petitioner, if said order is challenged.
3. Parties are directed to appear before the Registrar Central Administrative Tribunal on 3.8.2010, when ,on a copy of the present order being presented OA No. 1830/2007 would be placed before the appropriate Bench for consideration.
4. Parties agree that they would not be issued any further notice by the Tribunal and that they would appear through their counsel before the Registrar of the Central Administrative Tribunal on 3.8.2010.
5. Needless to state, impugned order dated 29.6.2009 is set aside and OA No. 1830/2007 is restored.
2. The charge against the Applicant is of unauthorised absence from duty as in the following table:
S. No. Date of absence Date of arrival Period of absence Days Hrs. Min 1. 4.09.03 22.09.03 18 07 05 2. 6.10.03 31.05.04 237 00 00 3. 21.06.04 29.06.04 09 00 00 4. 10.09.04 Still running absent Till the date of issue of this order.
3. The learned counsel for the Applicant would posit that he has explained the entire period of absence and the conclusion of the enquiry authority in holding the charge to be proved is perverse and arbitrary. It was argued that the enquiry authority has unjustifiably commented on the genuineness of the medical certificate given by the Applicant and cast aspersions on the integrity of the doctor who gave the medical certificate. Placing reliance on the judgement of this Tribunal in the case of Sohan Lal Vs. Union of India, OA number 2388 of 2003, decided on 18.01.2006, it was argued that once a Government Servant tendered medical certificate issued by an authorised medical authority, the quasi-judicial authority on the administrative side could not comment on the reliability and the genuineness of the medical certificate. The learned counsel for the Applicant takes serious exception to the comments of the disciplinary authority about the course of treatment to be followed in the ailment suffered by the Applicant on the basis of her knowledge of medicine, acquired during her education. It has also been argued that the actions of the Applicant could not have been considered for the period from 10.09.2004 up to the date of passing the order as it was not a part of the charge. The aforesaid actions could not have been taken into account without affording the Applicant an opportunity to show cause. The Applicant has relied upon the case of Ex-Constable Raja Ram Vs. Union of India and Others, OA number 1048 of 1999 decided on 27.11.2000. It was further contended that the appellate authority had based his order on extraneous considerations in as much as it was recorded in the order of the appellate authority that the Applicant "levelled the allegations against the disciplinary authority, which are not obnoxious (sic) and only add to his misconduct." The learned counsel would further argue that the disciplinary authority failed to take into account the mitigating circumstances in favour of the Applicant. It was urged that PW-8, Dr. K.S. Anand of the RML Hospital, Senior Neurologist, was in fact a court witness under Rule 16 of the Delhi Police (Punishment and Appeal) Rules, 1980. It was urged that the enquiry authority failed to examine him to clear the ambiguities as per the provisions of Rule 16 (v) ibid. This was a violation of the principles of natural justice, contended the learned counsel. The learned counsel would also point out that during the fourth spell of absence from 10.09.2004 the Applicant was on paternity leave. His wife was seriously ill, as had been found to be true in the discreet enquiry conducted by the Respondents. The Applicant had to look after his wife and the infant child. It was vehemently contended that the Applicant was posted as duty officer, Police Station, Chanakyapuri, which being very hard posting would scarcely have given any time to the Applicant to look after his ailing wife and the child. It was urged that even in those trying circumstances the Respondents did not sanction leave to the Applicant. It was pointed out that the Applicant was placed under suspension by order dated 23.12.2008. The learned counsel for the Applicant would contend that in view of the Applicant being placed under suspension from the date mentioned above, there could be no necessity for explaining his actions beyond that date.
4. The learned counsel for the Respondents, on the other hand, would contend that in judicial review the Tribunal should not re-appreciate the evidence. It was contended that the Applicant never gave his medical certificate to substantiate the fact of his illness. It was further contended that under Rule 19 (5) of the CCS (Leave) Rules, a Government Servant had no right to leave. He could not assume that the leave would be sanctioned after making an application for the same. It was further contended that during the last spell of his absence from 10.09.2004, on the basis of the report of the ACP, Chankyapuri, about his wife being ill and her having delivered a baby, the Applicant was given a light duty as duty Officer, yet he chose to remain absent.
5. We have given our utmost consideration to the rival contentions and have minutely perused the record placed before us with the assistance of the learned counsel.
6. We shall consider each spell of the absence about which the Applicant has been charged.
Spell : from 4.09.2003 to 22.09.2003 The Applicant produced certificate dated 01.04.2005 from Dr. J S Chouhan of Onkar Clinic to the effect that during the above period the Applicant was suffering from fever and hepatitis and was advised bed rest for this period. The certificate specifically mentioned that the records of the clinic had been checked. We had put this question to the learned counsel for the Applicant as to why the certificate was produced in 2005 for an illness of the year 2003. It was stated that the medical certificate had earlier been given to the reader to the Station House Officer, which was misplaced by the reader. The Applicant has stated in his written statement of defence that:
It is also a fact that applicant had informed the department about health problems and the treatment thereof by a qualified doctor. The department was well aware of the applicants residential address because the same was entered in Register No.16 at the place of applicants posting. The initial alleged absence was on account of applicants sudden illness and the treatment undertaken by Dr.J.S. Chauhan Onkar Clinic Vikas Puri Delhi from 4.9.2003. Dr. Chauhan is a very senior physician who holds the MBBS/MS degree in medical sciences. He checked the applicant and advised 18 days medical rest. The applicant had informed the police station but the information regarding medical rest was not recorded due to the reason that absence has already been marked and that the applicant will be at liberty to submit the medical rest papers together with the written statement after the medical rest period is over. In this manner the applicant is blamed for not giving intimation to the department. Had the intimation given by the applicant been recorded this allegation would not have been slapped against the applicant. In this context the applicant would humbly request that written statement of Dr.J.S.Chauhan is very relevant in which the details of treatment supported by his record are given. As regards the medical rest prescription the applicant had delivered the same to the reader to SHO after joining duties but that appears to have been misplaced and that is why it is no where on record. In the police station there is no practice of giving and taking papers against written acknowledgements. For example even the challans and case files are never delivered and received through written acknowledgements. In this context what the applicant has to be corroborated by is the statement of Dr. Chauhan Spell : from 2.06.2003 to 31.05.2004 Dr. K S Anand, DM (Neurology), Senior Neurologist, Dr. RML Hospital advised full bed rest to the Applicant on 06.10.2003 for a period of one month (page 99 of the paper book). The same doctor advised further bed rest for a period of six weeks on 07.11.2003. The Applicant had been advised not to drive (page 100 of the paper book). Dr. K S Anand again advised bed rest of eight weeks on 28.01.2004, as seen from the medical certificates placed at page 101 of the paper book. The Applicant was diagnosed as suffering from seizures. Yet another spell of bed rest for eight weeks was prescribed by the same doctor on 28.01.2004, as per his certificate on page 102 of the paper book. A certificate of sickness was given to the Applicant by the same doctor on 31.05.2004. Dr. K S Anand, as the court witness, has testified to the genuineness of the certificates.
Sh. Swatantra Kumar, ACP, PG Cell also conducted an enquiry into the absence of the Applicant during this period. Copy of his report has been annexed at pages 70 to 74 of the paper book. He has recorded in conclusion that:
"The prescription slips reg. M/rest have been found to be genuine and the Dr. has justified the requirement of long leave for the treatment." (Page 74) The ACP had made a written query to Dr. K S Anand, who had treated the Applicant, by his communication dated 24.08.2004 thus:
"There is no mention of hospitalisation or even a specific reason for recommendation of medical rest for such a long period. This aspect may be explained."
Dr. K S Anand has explained it on the body of the ACP's letter itself:
".. As per records Mr. Sunil Tanwar SI had been suffering from repeated epileptic attacks which required long leave
- He was not hospitalised and attended neurology 0PD.
-The OPD slips & medical rest advised are genuine and issued by me."
Spell: from 21. 06. 2004 to 29. 06. 2004 The Applicant has explained this in his defence statement in paragraph 7 thus:
7.In the third instance the applicant fell ill while on casual leave. The casual leave was granted/extended. The applicant however was still unwell and thus was compelled to approach the department with an intimation that doctor attending on him has advised 7 days medical rest w.e. from 21.6.2004. This intimation was recorded in the daily diary of P.S. Ch. Puri vide DD No. 27-B. Hence the fact of advising medical rest stands confirmed by doctor J.S. Chauhan (kindly see his statement which is enclosed with this statement). Intimation to the department is also there. Hence there is no misconduct of any kind. The applicant had sent intimation regarding the medical rest but lost the medical prescription which now stands vindicated by Dr. J.S. Chauhan. PW-3, Head Constable Brij Mohan has corroborated regarding DD entry number 27-B for medical rest for seven days and the Applicant's arrival on duty on 29.06.2004.
Fourth spell: from 10.09.2004 onwards The Applicant was sanctioned paternity leave for 15 days from 16.08.2004. His wife had developed some complications after the birth of a child and had to undergo surgery. The Applicant sought extension of leave by 21 days, which was declined by the leave sanctioning authority. The ACP, Chanakyapuri was asked to conduct an enquiry into this matter. The said ACP gave his report on 24.11.2004 in which he supported the contention of the Applicant. The report, inter alia, stated thus:
As desired, a discreet enquiry was got conducted into the matter, which revealed that the wife of SI Sunil Tanwar had given birth to a baby gird, a couple of months back and since then she is reportedly unwell. She is reported to have undergone an operation after the delivery. It has also been reported that a few days back she got her hand burnt. The mother of the SI, who is an old lady, also resides with him.
The report is based on the enquiries conducted from the immediate neighbours of the SI, namely Sh. V.P. Singh r/o 34-A, Vikaspuri Extn. and Smt.Charanjeet Kaur r/o 32-A, Vikaspuri Extn., besides enquiries made from the Security Guard posted in the locality. Referring to the above report, PW-2, SI Ramesh Chand said that "the SI (the Applicant) was neither granted leave nor personal hearing. He was advised to join his duty as Duty Officers only..".
7. The longest spell of absence of 237 days i.e. from 6.10.2003 to 31.05.2003 has been testified to be on medical grounds by Dr. K.S. Anand. The inquiry officer in his report has observed that malafides on the part of the Doctor can not be ruled out. It seems that the Doctor has mentioned period of Medical rest at a later stage to suit the requirements of the SI. The only reason for reaching this conclusion is that whereas the doctor had been recommending rest for four to eight weeks, yet the Applicant had been informing the department about bed rest of 7 to 10 days. We do not agree with the inquiry officers surmise about collusion between the doctor and the Applicant only on this tenuous ground.
8. It is only the period of absence in the first spell from 4.09.2003 to 21.09.2003, that only the certificate of the year 2005 of Dr. J.S.Chauhan is available to substantiate it. But in the above background, the preponderance of probability would be that the Applicant is right. The Applicant has been able to explain his absence from 10.09.2004 onwards also. There are mitigating circumstances. Moreover, taking into account, the absence of the Applicant up to the date of the order of the disciplinary authority has prejudiced the Applicant in the matter of quantum of punishment. In Const. Harish Chand Vs. Union of India, OA No.710/2005, decided on 22.10.2007 this Tribunal had, in a similar case, inter alia, directed that the fact that the applicant had remained absent upto date of order passed by the disciplinary authority, shall not be taken into consideration. More explicitly, in Ex. Constable Raja Ram Vs. Union of India and others, OA No.1048/99 decided on 27.11.2000, the Tribunal had observed thus:
As far as the present case is concerned, the same has taken the further period of absence into account. Even so, we find that aforesaid period could not have been taken into account without affording the applicant a reasonable opportunity to show cause. Since the said opportunity had not been given, the same could not have been taken into account for the purpose of imposing the impugned order of penalty. Aforesaid order, in the circumstances, we find suffers from vice of non-observation of the principles of natural justice.
9. The last spell of absence was from 10.09.2004 onwards. We agree with the Applicant that the period of absence could not have been taken as unspecified period beyond the date when the disciplinary proceedings were initiated against the Applicant, that is, 22.12.2004. Further, the Applicant had been placed on suspension by order dated 23.12.2004. As discussed above the Applicant had been sanctioned paternity leave for 15 days from 16.08.2004. He had applied for extension of leave by 21 days because he had to look after his wife who had undergone surgery and also his infant child. The ACP has corroborated the fact of the illness of his wife and the birth of the child. The Respondents merely stating that the leave cannot be taken as a matter of right and unless the leave is sanctioned, the employee had to be on duty would sound to be somewhat of a draconian view and lacking both in empathy and sympathy. The Government has to keep in view the genuine problems and the welfare of its employees. From the record and the evidence it appears that the Applicant had a genuine reason for absenting himself from duty. It may seem in the first blush that the Applicant is incorrigible and habitual absentee from duty. However, an analysis of the circumstances would reveal that his personal misfortune has played a large role in his absence. A very strict and rigid view would be that the Applicant should have abided by the orders to join duty, regardless of his predicament about looking after his wife and child. However, such a view should not be taken by the welfare State. The Applicant had put in about nine years of service before this spell of absence occurred. It is not the case of the Respondents that during the past nine years of his service also, the Applicant had been habitually absenting himself from duty. Considering all the aspects of the case, we are of the considered opinion that the evidence leads to the inescapable conclusion that the Applicant had been in genuine difficulty and the period of his absence had been adequately explained. The order of the disciplinary authority suffers from arbitrariness.
10. In the result, the OA succeeds. The impugned orders are quashed and set aside. It is directed that the Applicant should be reinstated in service forthwith. He would be eligible for all the consequential benefits as would accrue to him according to the rules. There will be no orders as to costs.
( Dr.Dharam Paul Sharma ) ( L.K.Joshi ) Member (J) Vice Chairman (A) sk