Central Administrative Tribunal - Delhi
Ct. Subhash Chand vs Gnct Of Delhi on 16 August, 2011
Central Administrative Tribunal
Principal Bench
OA-4302/2010
New Delhi this the 16th day of August, 2011
Honble Mr.G.Goearge Paracken, Member(J)
Honble Dr.Veena Chhotray, Member(A)
Ct. Subhash Chand
(2858/PCR, PIS no.28870050)
S/o Late Sh.Tara Chand
R/o Qtr. No.290, Police Colony,
Ashok Vihar, Delhi-52.
Group C, Aged-42 years. . Applicant.
(By Advocate: Shri Sourabh Ahuja)
Versus
1. GNCT of Delhi
Through the Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
2. Additional Commissioner of Police,
PCR, Delhi
Through The Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi.
3. Deputy Commissioner of Police,
PCR, Delhi.
Through The Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi
4. Inquiry Officer(Inspector/PCR)
Through The Commissioner of Police,
Police Head Quarters, IP Estate,
MSO Building, New Delhi. .. Respondents.
(By Advocate: Mrs. P.K.Gupta)
O R D E R (ORAL)
Honble Shri George Paracken:
The applicant has challenged the following orders in this OA:
Annexure A-1 order dated 12.9.2008 by which departmental enquiry was initiated against him.
Annexure A-2 report of the enquiry officer dated 14.3.2009 to the limited extent that the enquiry officer has proved part of the charge that he was willfully absented himself from duty from 14.4.2008 to 19.4.2008.
The order of the disciplinary authority dated 5.8.2009 by which he was punished by imposing the penalty of forfeiture of one year approved service for one year with proposed reduction in his pay.
The Annexure A-4 appellate order dated 5.7.2010 by which the appellate authority confirmed the disciplinary authoritys order and rejected the appeal of the applicant and Annexure A-5 order dated 24.4.2008 by which the applicant was placed under suspension.
2. The charge against the applicant was as under:
I Anil Sharma Inspr.(Admn.)Outer Zone PCR Enquiry Officer, hereby charge you Const. (Exe.) Subhash Chand. No.2858/PCR (PIS No. 29870050) that you, while posted at North-West Zone/PCR, had used abusive language and misbehaved with SI Parkash Chand, No.1778-D (Duty Officer/NWZ/PCR) over telephone on the pretext of marking your absent from leave in the daily diary. The facts behind this alleged misconduct are that you Const. Subhash Chand, No. 2858/PCR had gone to avail casual leave and was due back on 14.04.08 (FN) but you did not resume your duty from casual leave. As such, your absent was marked vide DD No.15 dated 14.04.08. At ahout 2.40 PM you Const. (Exe.) Subhash Chand, No.2858/PCR made a call on telephone No.27128870 installed in the office of NWZ/PCR and asked DOSI Parkash Chand No.1778-D to make your arrival from CL in the daily diary. The DO told you that you are due back from CL before 12.00 noon but you did not resume your duty till 2.15 PM. So your absent has been marked vide DD No.15 dated 14.04.08. After a few minutes, you again made a telephonic call to DO/North-West Zone/PCR which was attended by W/Const. Manju No.8078/PCR(DD writer/NWZ/PCR) as the DO was drinking water at that time. You Const.(Exe.) Subhash Chand, 2858/PCR asked W/Const. Manju to give the telephone to DO/NWZ, on that DO attended the telephone on which you used filthy language to DO SI Parkash Chand and misbehaved with him for marking your absent in the daily diary. You Const. (Exe.) Subhash Chand, No.2858/PCR joined your duty after absenting yourself for a period of 6 days deliberately.
3. The detailed enquiry was conducted in accordance with the rules. The enquiry officer summarized the aforesaid charge as under:
(1) You misbehaved with the DOSI Parkash Chand.
(2) You used filthy language on telephone to the DO SI Parkash Chand.
Your act is an insubordination in the disciplined force.
(4) You absented yourself willfully and unauthorisedly for a period of 6 days.
4. The conclusion arrived at by the enquiry officer, vide its Annexure A-2 report, was that only part of the charge, namely, willful absence of causal leave on 14.4.2008 by the applicant has been proved and the other allegations regarding misbehaving with the Duty Officer SI Prakash Chand has not been proved for lack of evidence. The relevant part of the said report is as under:-
The undersigned has gone through the defence statement of the delinquent and statement of DW-1 and it has come to the conclusion that the delinquent Const. Subhash Chand 2858/PCR absented himself from casual leave on 14.04.08 and has failed to inform the duty officer SI Parkash Chand about his illness well in time and has produced the medical certificate/prescription only to cover his absence and produced his relative in his defence as DW-I who too has not bring his mobile phone with him while coming to see hias ailing relative delinquent Const. Subhash Chand at this residence. The other PWs except PW-5 Parkash Chand has not supported the prosecution theory and the presence of all these witnesses in DO;s room at he same time caste shadows towards suspicion that how they gathered at the same time and what was their functioning at that time. Moreover, the conversation held on phone with SI Parkash Chand the duty officer is not possible to be heard at a distance of 2-3 feet by the other PWs about the abusive language used by the delinquent on phone while the main witness was asking him on phone that who is speaking. The probability of altercation on account of absence of Const. Subhash recorded in the DD entry by SI Parkash Chand can not be ruled out. Hence the allegations of being absent from casual leave beyond 14.04.08 has been substantiated and the other allegations contained in the charge are not substantiated.
Conclusion In view of the statement of PWs/DW and documents produced in the form of exhibits and defence statement and other material available on file the charge for willful absence from casual leave on 14.04.08 by Const. Subhash Chand No.2858/PCR stand proved and the other allegations for misbehaving with DO SI Parkash Chand are not proved due to the lack of evidence.
5. The disciplinary authority, vide its Annexure A-3 order dated 5.8.2009 agreed with the aforesaid findings of the enquiry officer and imposed upon him the punishment of forfeiture of one years approved service permanently entailing proposed reduction in his pay. His absence period from 14.4.2008 to 19.4.2008 and suspension period from 24.4.2008 to 10.11.2008 was also decided as period spent on duty. The relevant part of the said order is as under:
The Pleas advanced by the delinquent have no weight and could not be accepted being an after thought. PW-1 deposed that the delingquent had proceeded on one days CL for 13.4.2008 vide DD No. 12 dated 12.4.2008 and when he did not come back from leave, he was marked absent vide DD No. 15 dated 14.4.2008. He has also proved DD No.16 dated 14.4.2008 vide which the delinquent had told telephonically to make his arrival but he was directed to make his arrival after presenting himself physically as he has already been marked absent. This PW has also proved DD No.17 dated 14.4.2008 which was lodged by DO SI Parkash Chand regarding misbehaviour done by the delinquent . PW-2 has proved that the delinquent had proceeded to avail one days CL for 13.4.2008. PW-3 has proved his report dated 14.4.2008. However, during cross-examination he admitted that he was not the eye witness and did not written anything against the delinquent. PW-4 proved that on 14.4.2008, a telephonic call was attended by W/Const. Manju and then DO SI Parkash Chand, who was asking the name of caller. He further stated that it was presumed from the face of the DO that some body was misbehaving with him, however during cross-examination he admitted that he did not hear the conversation on phone and never heard about the misbehaviour done with the Durty Officer. PW-5, SI Parkash Chand has proved the allegations against the delinquent, however, during cross-examination, this PW has also admitted that the other staff present in the DO Room did not hear the conversation made on phone as it was not possible to hear from the receiver. PW-6 proved that on 14.4.2008, at about 2.45 P.M., a telephonic call was attended by the Duty Officer, who was saying the caller to get his arrival made in the Roznamcha from leave. This PW has also admitted during cross-examination that he did not hear the conversation made by the delinquent on phone. PW-9 proved that at about 2.45 P.M., a telephonic call was received on phone No.27128870 which was attended by her and then by DO SI Parkash Chand. She also admitted that she did not hear about the misbehaviour could not be proved due to lack of evidence but the charge of willful absence is proved, yet the probability of altercation on account of absence of the delinquent recorded in the Roznamcha by the DO cannot be ruled out, as discussed by the Enquiry Officer in his findings. Even, if it is presumed that the delinquent has not misbehaved with the Duty Officer, still his misconduct is grave as it has been very much established during the departmental enquiry that it was in the knowledge of the delinquent that he has to resume his duty on 14.4.2008 for which he made a telephonic call to the Duty Officer/NWZ/PCR and insisted him to make his arrival from leave, but the delinquent was informed that he should make his arrival in the Roznamcha only after presenting himself physically in the Zonal Office, but he did not do so and remained absent for a period of six days knowingly, which goes to prove that his absence was deliberate. The version of DW produced by the delinquent has no credibility as he is an interested witness being his relative and will naturally depose the same thing as taught by the delinquent. Besides, he never intimated the Duty Officer about his illness, but insisted him to make his arrival over telephone, which is against the norms in a disciplined force like Delhi Police. The misdeed committed by the delinquent is deliberate for which he cannot be pardoned and deserves penalty indeed.
6. The appellate authority has considered his appeal dated NIL but rejected the same vide its Annexure A-4 order dated 5.7.2010. In the said order it was stated that he had gone through the appeal submitted by the applicant, parawise comments of the disciplinary authority and other material/record on file before passing this order. The relevant part of the said order reads as under:-
I have gone through the appeal submitted by the appellant, parawise comments of disciplinary authority and other material/record on file. I have also heard the appellant in O.R. on 09.06.2010. During OR he said nothing new except what he has already stated in the appeal. Willful absence on the part of an individual weakens the chain of command resulting into failure in fighting the law and order and crime. A policeman by abstaining authorisedly becomes unreliable and loses the trust of his seniors. Under the circumstances I, therefore, do not find any reason to interfere with the order of the disciplinary authority issued vide No.16606-40/HAP (P-II)/PCR, dated 05.08.2009. Hence, appeal is rejected.
7. Applicant has challenged the aforesaid impugned orders on the ground that he made his departure on 12.4.2008 and was due to resume his duty on 14.4.2008 but because of his asthmatic problem i.e. breathlessness, he could not join his duty. Therefore, his brother-in-law Sushil Kumar Yadav informed Duty Officer SI Prakash Chand about his illness between 2-3 PM on 14.4.2008, but SI Prakash Chand told him that he has already been marked absent and disconnected the telephone. He has also submitted that he was under the treatment of Dr. S.K.Aggarwal for six days from 14.4.2008 to 19.4.2008 and he has submitted his medical certificates to the enquiry officer. Thereafter, according to him, he was not able to attend his duty because of his illness and there was no deliberate or willful intention on his part to absent himself from duty. He has also challenged the disciplinary authoritys order on the ground that it failed to appreciate that there was no misconduct on his part and he is absent from duty for the unavoidable reason that he was sick. In this regard the learned counsel has relied upon order of the Coordinate Bench of this Tribunal in OA-2338/2003 Sohan Lal and others Vs. Union of India and others, dated 18.9.2006 wherein it was held as under:
Once a government servant tenders medical certificate issued by an authorsied medical authority, the quasi judicial authority on administrative side is not an expert body either to comment about the reliability or genuineness of the certificate. As per Rule 19(3) of the CCS (Leave) Rules, 1972 in case of doubt, when a person produce certificate, the competent authority to grant leave at his discretion can verify the genuineness of the medical record, and to ascertain the reliability of the ground of illness of government servant can send the concerned for medical examination before a civil surgeon for second opinion, and only thereafter comment on genuineness of medical record has to be made.
8. The other argument of the counsel for applicant Sh. Sourabh Ahuja was that the appellate authority has considered extraneous matters in disposing of his appeal and therefore his order is not an independent one. He has further submitted that the appellate authority has considered the parawise comments of the disciplinary authority without following the principles of natural justice inasmuch as he has never been given any opportunity to see the contents of the said comments which were obviously against him and therefore he had no opportunity to deny them. In this regard, the learned counsel relied upon a recent order of Coordinate bench of this Tribunal in OA-949/2010 ASI Sardar Singh Vs. Commissioner of Police and others decided on 4.7.2011, which in turn was based on an earlier decision of another Coordinate Bench in OA-723/2002 Ex. Constable Ram Kumar Vs. Union of India and others decided on 18.2.2003 and OA-2919/2002 Ex. Constable Rajender Singh Vs. Union of India & Ors., decided on 26.6.2003 and held that the parawise comments of the disciplinary authority is an extraneous matter before this appellate authority and it could not have been considered by it without affording opportunity to the applicant. The relevant part of the order in OA-949/2010 is reproduced as under:
4. The disciplinary authority in his Annexure A-1 order dated 06.10.2008 agreed with the aforesaid findings of the Inquiry Officer and imposed the punishment of forfeiture of one year approved service temporarily. The appellate authority also vide Annexure A-2 order dated 06.11.2009 agreed with the aforesaid orders of the disciplinary authority and rejected his appeal. The relevant part of the said order is as under:
I have gone through his appeal, para-wise comments of the disciplinary authority, D.E. file and other relevant materials available on record. I have also heard the appellant in O.R. on 12.5.2009. After going through the facts and circumstances of the case discussed in the foregoing paras, I found no ground to interfere with the orders of the disciplinary authority and accordingly the appeal is hereby rejected.
5. The contention of the applicant is that the order of the appellate authority is bad in law and the same has been passed taking into account the parawise comments of the disciplinary authority and, therefore, its decision is not independent and violative of the principles of natural justice. He has also submitted that in a number of cases, this Tribunal has held that the appellate authority cannot take into account the parawise comments of the disciplinary authority and such an action is against the principles of natural justice as the applicant has no opportunity to go through the same and make his submissions.
6. In this regard, he has also relied upon the Order of this Tribunal in OA 783/2002 - Ex. Constable Ram Kumar Vs. Union of India & Ors., decided on 18.02.2003 and OA 2919/2002 - Ex. Constable Rajender Singh Vs. Union of India & Ors., decided on 26.06.2003.
7. In the case of Ex. Constable Ram Kumar (supra), a co-ordinate Bench of this Tribunal has held as under:
3. During the course of submissions, it was pointed that the appellate authority had taken into consideration extraneous material in the form of comments of the disciplinary authority.
4. The settled principle of law is that an appeal must be decided on the basis of materials on record brought during the course of the enquiry. It is noted that the comments of the disciplinary authority had been taken into consideration by the appellate authority and a fact has been recorded to this effect while disposing of the appeal. When such is the situation and the appellate authority had taken the relevant record, the necessary conclusion would be that such extraneous material has crept into the mind of the appellate authority and prompted him to dismiss the appeal.
8. In the case of Ex. Constable Rajender Singh (supra) also, this Tribunal held as under:
By virtue of the present application, he seeks quashing of both the orders passed by the Disciplinary Authority as well as Appellate Authority. During the course of submissions, learned counsel for the applicant contended that the Appellate Authority while disposing of the appeal has considered the comments of the Disciplinary Authority which could not have been done. In this process extraneous factors have been taken into consideration. The law is well settled that extraneous factors cannot be taken into consideration, reason being whenever an appeal has to be disposed of it has to be decided on the basis of the material on record. During the course of the enquiry and before the Disciplinary Authoritys order, all factors must be known to the alleged delinquent. The comments of the Disciplinary Authority were not communicated to the applicant. Therefore, it must be taken to be extraneous material because they have not been communicated to the applicant. On this short ground, we allow the present application and quash the order passed by the Appellate Authority. However, we make it clear that it would be for the Appellate Authority to pass the appropriate order in accordance with law. Nothing said herein should be taken as an expression of opinion on the other contentions which we are not deciding.
9. He has also taken various other grounds in challenging the inquiry report as well as the order of the disciplinary authority.
10. The respondents have, however, refuted the aforesaid submissions of the applicant in their reply and submitted that the order of the appellate authority is quite clear and is a speaking one and the submission of the applicant is baseless.
11. We have heard the learned counsel for the applicant and the learned counsel for the respondents. At this juncture, we are not going into the various other grounds taken by the applicant for challenging the findings of the Inquiry Officer as well as the orders of the disciplinary authority. As stated by the learned counsel for the applicant, this Tribunal has held in a number of cases including the aforesaid two cases that the consideration of the parawise comments of the disciplinary authority by the appellate authority is against the principles of natural justice and, therefore, such orders of the appellate authority cannot be sustained.
12. We have also perused the documents produced by the respondents. They were only a bunch of photo copies of some orders collected in random. They should have produced the original file in which the parawise comments of the disciplinary authority have been considered by the appellate authority.
13. In view of the above position, we partly allow this O.A. and quash the Annexure A-2 order dated 04.11.2009 of the appellate authority only on the aforesaid ground and remit the matter to the said authority to consider the statutory appeal of the applicant independently and ignoring the aforesaid parawise comments furnished by the disciplinary authority and pass fresh orders within a period of two months from the date of receipt of a copy of this order.
14. We make it clear that nothing said in this order shall be construed as an opinion in respect of other contentions already raised by the applicant in this O.A. There shall be no order as to costs.
9. Respondents have filed the reply and they have denied all the contentions raised by the applicant in this OA. They have reiterated the fact that applicant has deliberately absented himself from duty and it was a misconduct on his part. They have also submitted that the disciplinary authority has considered the enquiry report and the punishment imposed upon him was proportionate to the gravity of misconduct proved during the enquiry. They have also submitted that the appellate authority has considered his appeal and rejected the same because the disciplinary authoritys order was strictly in accordance with the rules and procedures.
10. We have heard the learned counsel for the applicant and the learned counsel for the respondents. The enquiry officer has partly proved the charge against the applicant on the basis of the evidence adduced before him. According to him the charges levelled against the applicant that he misbehaved with Duty Officer Sh. Prakash Chand, he has used filthy language on telephone and he showed insubordination have not been proved during the enquiry but the charge that the applicant has absented himself willfully and unauthorisedly for a period of six days from 14.4.2008 has been proved. We also find that the enquiry was held in the enquiry proceedings in accordance with the rules and following the principles of natural justice. The disciplinary authority has also duly considered his representations and taken the final decision in the matter. However, we see that the appellate authority, in violation of the principles of natural justice while deciding the appeal submitted by the applicant, considered the parawise comments submitted by the disciplinary authority. Once the disciplinary authority has passed its orders, it becomes functus officio and any further consideration of the matter by way of comments/report submitted to the appellate authority on the appeal of the delinquent has to be treated as extraneous one as held by this Tribunal in the case of Ex. Constable Ram Kumar (supra), Ex. Constable Rajender Singh (supra) and ASI Sardar Singh (supra). We, therefore, partly allow this OA and quash and set aside the appellate authoritys order dated 5.7.2010 and remit the matter to it with the directions to reconsider the statutory appeal filed by the applicant afresh independent of the parawise comments furnished by the disciplinary authority and pass fresh orders within two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( Dr. Veena Chhotray ) ( George Paracken )
Member (A) Member (J)
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