Central Administrative Tribunal - Delhi
Hari Singh vs Comm. Of Police on 13 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA-2701/2012
Order Reserved on 23.07.2015
Order Pronounced on: 13.10.2015
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. A.K. Bhardwaj, Member (J)
Shri Hari Singh
S/o Shri Umrao Singh
R/o Village & PO Mohawwa,
Gunti Tehsil, Bahrod, Distt. Alwar,
Rajasthan. -Applicant
(By Advocate: Shri Ajesh Luthra)
Versus
1. Commissioner of Police
PHQ, MSO Building
IP Estate, New Delhi.
2. The Joint Commissioner of Police,
Northern Range, I.P. Estate, New Delhi.
3. The Addln. Commissioner of Police
Central Distt. P.S. Darya Ganj,
Delhi. -Respondents
(By Advocate: Mrs. Sumedha Sharma)
ORDER
Per Sudhir Kumar, Member (A):
The applicant of this case is aggrieved by the order of the Appellate Authority dated 18.01.2012 confirming the order of the Disciplinary Authority dated 26.07.2011, ordering his dismissal from service, after concurring with the findings of the Enquiry Officer.
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2. The facts of this case lie in a very narrow compass. A Departmental Enquiry (DE, in short) was instituted against the applicant under Delhi Police (Punishment & Appeal) Rules, 1980 (DPPA Rules, 1980, in short) because of his long unauthorized absence from duty. The applicant had been absent from duty while being posted at Police Station Rajender Nagar, and was first marked absent vide DD entry No. 48B dated 08.09.2009. The applicant resumed his duty after 371 days and 16 hours on 15.09.2010 vide DD entry No.24B, Police Station Rajender Nagar. During the period of his absence, absentee notices dated 23.09.2009 and 21.12.2009 were issued to him, and served upon him at his home address of village Gunti, Behrod, District Alwar, Rajasthan.
3. When the applicant did not report for duty for a long time, DE was instituted against him through order dated 15.06.2010. Since the applicant was absent, the notice of the DE and the documents attached with that, along with the Summary of Allegations and List of Witnesses, were served upon him at his home in District Alwar, Rajasthan, on 02.08.2010, through HC Ashok. Even thereafter, the applicant did not join the DE proceedings. The Enquiry Officer moved an application to the Competent Authority to order DE proceedings to be undertaken ex-parte. However, through an order dated 18.09.2010, the Competent Authority directed the Enquiry Officer to give one more opportunity to the applicant to attend the DE proceedings, 3 OA-2701/2012 since he had just reported back for duty three days prior to that, on 15.09.2010. On 23.10.2010 he appeared before the Enquiry Officer, and the DE Order, Memorandum, Summary of Allegations, List of Witnesses and List of Documents etc. were once again served upon the applicant under his proper receipt. The Summary of Allegations included, inter-alia, that he had remained wilfully and unauthorizedly absent, in contravention of Standing Order No. 111 of Delhi Police.
4. It has been observed by the respondents, in the papers as filed by the applicant along with his OA, that he had remained absent on 87 different earlier occasions also, for which also he was awarded punishments a couple of times, and had been reprimanded on other occasions, but he did not mend his conduct, and again absented himself wilfully and unauthorizedly.
5. The Enquiry Officer completed his DE in due course and submitted his findings, through the report dated 10.06.2011 (Annexure A-3 of the OA), concluding therein that the charge against him stands proved
6. A copy of the E.O.'s report was served upon the applicant through his wife at his permanent residential address vide office U.O. No.22.06.2011, as he was once again missing, and was neither on duty, nor was found at his permanent residential address, directing him to submit his written representation 4 OA-2701/2012 within 15 days. The applicant thereafter submitted his written representation dated 07.07.2011, which was received in the Disciplinary Authority's office on 13.07.2011. The Disciplinary Authority gave him a personal hearing also in the Orderly Room on 20.07.2011, when the applicant took the ground of his medical condition in his defence. He was, therefore, asked to submit the medical papers in original in relation to his absence from 08.09.2009 to 15.09.2010.
7. The applicant thereafter submitted a photocopy of the medical certificate issued to him by the Medical Officer of Rajiv Gandhi Government General Hospital, Alwar, Rajasthan (page- 17 of the OA) for the period from 08.09.2009 to 01.06.2010, for 268 days, stating that he was suffering from psychotic depression, and that he was now fit to resume his duties from 02.06.2010. The applicant had also submitted another second Medical Certificate (page-16 of the OA) dated 04.09.2010 issued by a Private Doctor, stating that the applicant was suffering from acute depression, and he was of the opinion that for him to get healthy, the period of 02.06.2010 to 14.09.2010 was appropriate for his remaining absent from his duties. Armed with these two documents, the applicant had pleaded and explained his absence from 14.09.2010, and resumption of his duties from 15.09.2012. However, the Disciplinary Authority, in its order dated 26.07.2011, after considering his representation 5 OA-2701/2012 at Annexure A-4 did not accept the explanation to be suitable and sufficient, and passed the following order:-
"I have very carefully gone through the D.E. file including D.E. order, summary of allegations etc., statement of P.Ws, charge and other material came on DE file during DE proceedings. Delinquent Constable Hari Singh, No. 1566/C was also heard in O.R. on 20.07.2011 in person in view of the fair play and natural justice. The delinquent Cost. was asked to submit his medical papers in original for his absent w.e.f. 8.9.09 to 15.09.2010 for 371 days and 16 hours as he resumed his duty on 15.09.2010 vide DD No. 24B P.S. Rajender Nagar. In this regard, he has submitted the photocopies of his medical certificate w.e.f. 8.9.09 to 1.6.09 for 268 days only and stated that the original papers have been lost somewhere. He further stated that he has no medical papers w.e.f. 2.6.09 to 14.9.10. The delinquent Cost. had not informed the department in between a long period of above one year instead of receiving of absentee notices. I fully agree with the findings of the Enquiry Officer. Absenteeism in the force is a very serious matter because it cripples the entire administration of the police department. Each and every police personal is deployed for duty with a specific task. It is like a chain and if any link of the chain is missing, it jeopardizes the entire system. It is a serious misconduct on the part of delinquent Constable which calls for exemplary punishment as it will encourage other members of the force for doing so. It has also been established that delinquent Constable had absented himself willfully and unauthrisedly. If he was ill, he should have obtained prior permission from the competent authority for taking treatment as well as availing medical rest at his residence but he did not do so. In a disciplined force, wilful and unauthorized absence, if taken lightly, will not only encourage other members of the force but also destroy the whole fabric of discipline. All this shows that the delinquent Constable wants to do his duty at his own sweet will and remained absent from his duties unauthorisedly..........
In view of above facts and discussion, the delinquent Constable is liable for an exemplary punishment. I do not see any other penalty, which can be awarded to such incorrigible person. Therefore, agreeing with the findings of the E.O. and keeping everything in mind I, Aslam Khan, Addl. Dy. Commissioner of Police, Central District, Delhi hereby dismiss Const. Hari Singh No. 1566/C (PIS No. 28930105) from the service with immediate effect. His above mentioned absence period is also decided as period not spent on duty for all intents
6 OA-2701/2012 and purposes on the principle of 'No Work No Pay' and the same will not be regularized in any manner".
8. The applicant filed his appeal with the Appellate Authority through Annexure A-5 dated 06.08.2011 on 08.08.2011, but through his order dated 18.01.2012 (Annexure A-1), the Appellate Authority also did not find any merit in the appeal petition and recorded his findings as follows:-
"The facts of the case are that while the appellant was posted at P.S. Rajender Nagar, he remained absent from duty for a period of 373 days from 08.09.09 to 15.09.2010. During the period of absence, 02 absentee notices were sent at his permanent residential address with the directions to report for duty at once, failing which departmental action would be taken against him and in case of illness he should report to Chief Medical officer, District Alwar, Rajasthan for second medical opinion. He did not report for duty and remained absent from duty willfully and unauthorizedly.
xxx xxx xxx A departmental enquiry was initiated against the appellate vide order No.3473-92/HAP/AC-II/C dated 15.06.2010. The Enquiry Officer completed the Departmental Enquiry and submitted his findings concluding therein that the charge framed against Const. Hari Singh, No. 1566/C stands proved.
A copy of the findings was served upon the appellant through his wife at his permanent residential address for submitting his written representation within 15 days. The appellant had submitted his written representation on 17.07.2011. He was also heard in Orderly Room. He only stated that he was ill. He did not submit complete and original medical papers in support to his claim. Hence, the Disciplinary Authority awarded the punishment vide the order appealed against.
9. The applicant has now filed this OA taking the grounds that the actions of the respondents are illegal, arbitrary, malafide and against the provisions of law, and that they have violated the principles of natural justice, as well as his Fundamental Rights, overlooking that they have not applied 7 OA-2701/2012 their mind to his long years of service with unblemished service record. He further took the ground that in regard to his absence, he has submitted Medical Certificate duly issued by the Medical Board of Rajiv Gandhi General Hospital, Alwar, which showed that he was suffering from psychotic depression, and had remained under medical treatment there from 08.09.2009 to 01.06.2010, and the doctors had given him fitness certificate from 02.06.2010. He had further taken the ground that since he had still not recovered fully from the treatment given at Rajiv Gandhi General Hospital, Alwar, therefore, he thereafter remained under medical treatment with Private Doctor, Dr. S.K. Sharma, M.D. Senior Physician, Alwar, Rajasthan, for his psychotic depression, who had further advised him medical rest from 02.06.2010 to 14.09.2010, and immediately thereafter, after his recovery, he had joined duty on 15.09.2010.
10. The applicant took the further ground that both the medical certificates submitted by him were duly examined by the Enquiry Officer himself, and had even been got verified by sending a police official. He further submitted that during the DE PW-1 had stated that the applicant had left for medical examination at RML Hospital on 08.09.2009, the date from which he was absent, which goes to show that he was actually sick. He further took the ground that previous absentee record could not have been relied upon by the respondents, as those periods of absence were sometimes for one hour or one day, and 8 OA-2701/2012 cannot be used as a ground for his dismissal from service. He further took the ground that the respondents have failed to appreciate that he was suffering from psychotic depression, and, therefore, he was not in a position or condition to inform the Competent Authority, and to seek permission to avail medical rest, as at that time the circumstances prevailing were beyond his control, and he was not in his senses, and, therefore, a lenient view should have been taken by the respondents.
11. The applicant further took the ground that while the Enquiry officer has taken into consideration that he had himself given in writing that he was suffering from cancer, but the medical certificates produced by him show that he was suffering from psychotic depression, he submitted that he was under
mental depression, and was not in his senses, and, therefore, he gave in writing to the Enquiry Officer that he was suffering from cancer, but had later produced correct medical certificates, showing that he was suffering from psychotic depression, and was not mentally fit. He further took the ground that just because he was not admitted in the Hospital cannot prove that he had not taken the treatment as per the medical certificate produced by him, which has also been got verified by the Enquiry Officer during the D.E. He further took the ground that if the Enquiry Officer or the Disciplinary Authority had any doubt with regard to the authenticity of the medical certificate produced by him, it could not have been held that they do not 9 OA-2701/2012 carry any weightage. He submitted that though the original papers of the medical certificates have been misplaced, he has produced photocopies of the same before the Disciplinary Authority, and it cannot be held against him that he has not been able to show the original medical papers of his medical treatment. He further took the ground that both the Disciplinary Authority and the Appellate Authority have failed to appreciate that all the papers regarding medical certificates were duly filed, and seen by the Enquiry officer, who had got it verified by sending Head Constable Ram Singh to verify the same, and yet they had not accepted them to be valid. In the result, he had prayed for the following reliefs:-
"a) Quash and set aside the impugned orders dated 18.1.2012 and 26.07.2011 passed by the Appellate Authority and Disciplinary Authority of the respondents;
b) Quash and set aside the finding given by the Enquiry Officer;
c) Award costs of the proceedings and
d) Pass any other order/direction which this Hon'ble
Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case".
12. The counter reply was filed on 27.09.2012. The respondents had explained the facts as discussed above already, regarding the absenteeism of the applicant for 371 days, and on 87 different previous occasions. It was submitted that the Enquiry Officer and the Disciplinary Authority had properly gone through the required procedure as per law. The applicant had submitted his written representation against the 10 OA-2701/2012 Enquiry Officer's report and the Disciplinary Authority had given him a personal hearing in Orderly Room on 20.07.2011 in order to ensure fair play and natural justice, and when asked to submit his medical papers in original, he had submitted only photocopies of his medical certificate w.e.f. 08.09.2009 to 01.06.2010 for 268 days only, and submitted that the original papers had been lost somewhere. It was also pointed out that in the Orderly Room hearing, the applicant had stated that he had no medical papers for the period w.e.f. 02.06.2010 to 14.09.2010. Hence the respondents had justified the Disciplinary Authority having agreed with the findings of the Enquiry Officer, and held it to have been established that the applicant had absented himself wilfully and unauthorizedly.
13. It was further held that even if he was ill, he should have still obtained prior permission from the Competent Authority for taking treatment, as well as availing medical rest at his residence itself, but he did not do so, and had unauthorizedly remained absent from his duties without any information or permission. It was submitted that the charge served upon the applicant has been proved, and since he had violated the provision contained in Rule 19 (5) of CCS (Leave) Rules, 1980, and SO No. 111 of Delhi Police, and since in his 18 years of service from 05.02.1993 onwards, he had remained absent on 87 different occasions previously also, showing his nature of absenteeism, the Disciplinary Authority had agreed with the findings of the Enquiry officer and dismissed the applicant. It 11 OA-2701/2012 was further submitted that the period of his unauthorized absence of 371 days was decided to be treated 'as period not spent on duty' for all intents and purposes. It was further submitted that even the Appellate Authority had considered his appeal in detail, and given him an oral hearing also, and then rejected his appeal, a copy of which order of rejection was served upon him on 17.02.2012.
14. Giving Para-wise reply to the contents of the OA, the respondents more or less repeated all the other details and averments, and had submitted that absenteeism is a serious "misconduct", which calls for exemplary punishment, as otherwise it will encourage other members of the disciplined Police force for doing so. If such willful and unauthorized absence is taken lightly, the whole fabric of the disciplined Police force will be destroyed.
15. In reply to the grounds taken by the applicant, it was also submitted that the enquiry was conducted properly, and ample opportunities were also given to him by the Enquiry Officer, as well as thereafter by the Disciplinary Authority, and the Appellate Authority, even for personal hearings in the Orderly Room. It was submitted that during the DE proceedings, the applicant had submitted only the photocopies of his medical rest slips/certificate, and he had not produced any prescription slips of his medical treatment papers, which could have gone to show as to what treatment was being given to the applicant by 12 OA-2701/2012 the Doctors during his illness. It was further submitted that while the Doctor of the Govt. Hospital had given him a medical certificate for the period from 08.09.2009 to 01.06.2010 and held him to be fit to resume his duties from 02.06.2010, but, as is apparent from the pleadings in the OA, that instead of joining his duties immediately thereafter, he went to a Private Doctor, and while the original medical rest slip issued by the Private Doctor for the period from 02.06.2010 to 14.09.2010 was exhibited during DE proceedings, prescription slips regarding treatment had been stated to have been lost somewhere. It was, therefore, submitted that it is apparent that the applicant had managed to get a false medical certificate at least for the period from 02.06.2010 to 14.09.2010. It was pointed out that as per CCS (Leave) Rules, when a Govt. servant produces a medical certificate, it should have been issued by an Authorized Medical Attendant, or by a Registered Medical Practitioner, if there was no Authorized Medical Attendant available within the area of 8 kms from his residence. It was submitted that as per Rule 19(5) of CCS (Leave) Rules, 1972, the grant of medical certificate itself does not confer upon the Government servant concerned any right to sanction of leave, and that despite having received two absentee notices earlier, the applicant had neither resumed his duties, nor had he appeared before the Chief Medical Officer, Alwar (Rajasthan), for a second medical opinion.
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16. It was submitted that since he was not an indoor patient, he should have got his medical treatment permitted from the Competent Authority, which he did not do. It was further submitted that after rendering 18 years of service, when the applicant was fully aware that he had to intimate the department about his illness and absence period, if he was not in a position even to walk, and to intimate the department regarding his medical reason for his absence, then he should have at least deputed one of his family members to inform the department, but he did not do so, either by post or telephonically, or by FAX, or in any manner whatsoever, to keep his department informed. It was further submitted that the absentee notice was served upon the applicant himself, yet he had not informed the department regarding his illness, which gives rise to the presumption that he was not interested to perform his duties. Still, the DE proceedings were conducted at length, in order to be able to reach at the conclusion in a proper manner, before passing final orders. It was, therefore, prayed that the OA has no merit, and the applicant is not entitled for any relief whatsoever.
17. Heard. During his arguments, learned counsel for the applicant very valiantly defended the case of the applicant stating that he was indeed medically unfit, and was not even aware of what was going on and happening in his surroundings, in order to be able to even inform his superiors about his 14 OA-2701/2012 illness. He submitted that a case of mentally ill person should be considered sympathetically, rather than harshly, and relied upon the following portions of the findings of the Enquiry Officer to show that the respondents had even verified about his mental illness, and, therefore, they should not have had any element of doubt about that:-
"In his defense the medical certificate produced by Ct. Hari Singh No. 1566/C is one from medical board of Rajiv Gandhi Govt. General Hospital issued by Dr. O.P. Gupta, Dr. J.S. Sharma and Principal Medical Officer imported to be issued vide No. 2874 dated 12.05.2010 and it is from 08.09.2009 to 01.06.2010. It is given as exhibit No. (ex EOW 1/A) Dr. has mentioned he is suffering from Psychotic depression he is fit to resume duty from 02.06.2010. The other certificate is of dated 04.09.2010 purported to be issued by Dr. S.K. Sharma a private Dr. from Alwar Rajasthan the medical certificate is issued from 02.06.2010 to 14.09.2010 is given exhibit no. (Ex EOW No.-1/C) on dated 04.09.10 the same Dr. has given him the fitness certificate this is given exhibit (Ex EOW No.-1/D). To get verify these certificates I sent HC Ram Singh No. 239/C to Alwar with the letters to concerned doctors to get verify the genuineness as well as whether Ct. was in the condition that he can not inform the department about his illness. HC Ram Singh (EOW 1) verified the said medical certificates from general Hospital Alwar and from Dr. S.K. Sharma and he clarified from the record that Ct. Hari Singh was never admitted in the hospital he got the treatment as an outdoor patient. Dr. did not suggest that he was not in the condition to travel or to inform the department about his illness".
18. Learned counsel for the applicant took us through the two medical certificates at pages 16 & 17 of the OA, and submitted that even though the Govt. Doctors had, through the medical certificate dated 12.05.2010, as recorded on top of the certificate at Page-17, certified that the applicant was suffering from psychotic depression, and the period from 08.09.2009 to 01.06.2010 of 268 days was necessary to be sanctioned for his authorized period of absence, and it was certified that he was fit 15 OA-2701/2012 to resume his duties from 02.06.2010, since he still felt not perfectly well, and was not in a position to perform his duties, he had to approach the Private Doctor, Dr. S.K. Sharma for his further treatment of depression, who had certified on 04.09.2010 that applicant's absence from 02.06.2010 to 14.09.2010 is essential for him to get well. In this context, the learned counsel for the applicant took us through a judgment of the Supreme Court in Chhel Singh vs. M.G.B. Gramin Bank Pali & Ors., AIR 2015 SC 598, and relied especially on Para-15 of that judgment, in which it was held as follows:-
"15. From the plain reading of the charges we find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and ½ months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant's unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant's absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay".
19. He further cited Supreme Court's judgment dated 15.02.2012 in Krushnakant B. Parmar vs. Union of India & Anr. (2012) 3 SCC 178, and relied especially upon the paragraphs 15 to 20 of the said judgment, in which the Supreme Court had held as follows:-
16 OA-2701/2012 "15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.
16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be wilful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty".
20. Learned counsel for the applicant submitted that in Para- 17 of this judgment, the Supreme Court has clearly held that if the absence is the result of compelling circumstances, under which it was not possible to report or perform duty, such absence can not be held to be willful. He further submitted that in Para-18 of this judgment, Supreme Court has further gone on to hold that absence from duty without any application or prior permission may amount to unauthorised absence, but it does 17 OA-2701/2012 not always mean willful, because of eventualities due to which an employee may have abstained from duty, including compelling circumstances beyond his control, like illness, accident, hospitalization, etc., but then in such case the employee cannot be held guilty of failure of devotion to duty, or conduct/behaviour unbecoming of a Government servant. He further argued that in Para-19 of this judgment, the Supreme Court has held that in a departmental proceedings, if allegation of unauthorised absence from duty is required to be made, the disciplinary authority is required to prove that the absence is willful, and in absence of such a finding, the absence will not amount to misconduct. He thereafter also cited the following three judgments, which had been cited in the judgment of the Supreme Court in Krushnakant B. Parmar (supra):
"i) K.C. Bhaskaran vs. The Assistant Director for Survey and Land Records Department, Tiruchirapalli in W.P. (C) No.7047 of 2007 dated 28.04.2014;
ii) K. Palaniswamy vs. The Commandant in WP No.25534 of 2006 dated 09.04.2013;
iii) Barun Chatterjee vs. State of West Bengal & Ors.in W.P.S.T. No.125 of 2013 dated 26.08.2013".
21. He further submitted that while the long absence of the applicant is admitted, but since it was on account of his psychotic depression, when he was not even aware what was going on around him, he could not have been in a position to report to the respondents, and even to seek leave or sanction for his unauthorized absence.
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22. The learned counsel for the respondents, on the other hand, took us through the orders of the Disciplinary Authority and the Appellate Authority in great detail, portions of which have already been reproduced by us above. She also pointed out that once the Government Doctor had held the applicant fit to resume his duties from 02.06.2010, at least the further absence of the applicant from 02.06.2010 to 14.09.2010 was absolutely willful, for which the applicant did not even go to a Government Doctor to obtain a Medical Certificate, but somehow managed to obtain the Certificate issued by a Private Doctor Dr. S.K. Sharma, which has been produced as Annexure-8 by him. Relying upon the findings of the Enquiry Officer as reproduced above, she submitted that both these medical certificates have been duly noticed and discussed by the Enquiry Officer in his report. She relied upon the order dated 28.02.2014 in OA No.1320/2013 of the same Bench in Rajesh Kumar vs. The Commissioner of Police & Ors. In that Order, this very Bench had discussed the points of law as follows:-
"12. It is not so that the applicant remained absent only during the period mentioned by the enquiry officer in the discussion but he also remained absent earlier also on 31 different occasions. Such absence is mentioned in para 2 of the charge:
"You Ct. Rajesh No.972/W again absented yourself while posted at District line vide DD no.11 dated 07.03.10 and resumed your duty vide DD No.15 dated 04.04.11 District line after absenting yourself for a period of 28 days 2 hours & 40 minutes. Another absentee notice was issued to you vide No.3203-05/SIP (W) dated 17.03.11 and the same was received by you on 30.03.11. Your past record also shows that you have absented yourself on 31 different occasions".
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13. In view of the past record of the applicant and the fact that the medical documents produced before the enquiry officer did not cover the entire period of absence, we are not able to accept the plea of the applicant that his absence was attributable to his ailment and ailment was such that he could not have obtained permission for medical rest leave. As far as the plea of the applicant regarding consideration of his previous record is concerned, we find that in Rule 16 (XI), it is specifically provided that if the disciplinary authority considered it necessary, by taking into consideration the previous bad record of the delinquent and including it as a definite charge and giving him an opportunity to defend himself as required under the rules may award severe punishment upon the delinquent. Thus, the mention of previous record of the applicant in the charge was in consonance with the provisions of Delhi Police (Punishment and Appeal) Rules, 1980. The misconduct of unauthorized absence becomes of greater magnitude when it is committed by the member of a disciplined force. Misplaced sympathy for indisciplined employees not only encourage the tendency of indiscipline in the individual who is benefited by such sympathy but also send a wrong message to others also and encourage indiscipline.
14. It is settled position of law that the absence from duty is root cause of indiscipline in government service, particularly in disciplined force. In Maan Singh v. Union of India & others, (2003) 1 SCC 329, it could be viewed that habitual absence on several occasions unauthorizedly is a grave misconduct and the penalty imposed upon the appellant was justified. Paragraph 11 of the said judgment reads as under:-
"11. Relying on State of Punjab & Ors. vs. Ram Singh Ex-Constable, 1992 (4) SCC 54, one of the arguments advanced before us is that it is only in cases where the misconduct is of gravest kind an order of dismissal shall be made. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows :-
"Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, in making such an award regard shall be had to the length of service of the offender and his claim to pension."
After analysing the said provision, this Court in Ram Singh's case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer proved 20 OA-2701/2012 to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified.
15. In State of U.P. & others v. Ashok Kumar Singh & another, (1996) 1 SCC 302, it could be viewed that the absence of the respondent from duty would amount to grave misconduct and there was no justification for the High Court to interfere with the punishment holding that the punishment was not commensurate with the gravity of the charge. Paragraph 8 of the said judgment reads as under:-
"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 observation 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."
16. In Government of Tamil Nadu & another v. K. Rajaram Appasamy, JT 1997 (5) SC 178, it could be viewed that the Tribunal is wholly wrong in its direction to the appellants to pay 50% of the back wages from the date of his absence till the date of filing of the original application. Paragraph 3 of the said judgment reads as under:-
"3. These appeals by special leave arise from the Order dated May 14, 1996 passed by the Tamil Nadu Administrative Tribunal, Madras in O.A. Nos. 2354, 2477 and 6373 of 1993. The admitted facts are that the respondent was working as a doctor. He proceeded on leave and made a representation on June 27, 1987 with regard to his posting. He did not report for duty for five years from May 1, 1982. A departmental enquiry came to be conducted against the respondent, under Rule 17 (b) of the Tamil Nadu Services (Discipline and Appeal) Rules. The competent authority removed him form service on the ground that the respondent was found to be unauthorisedly absent from duty for five year. The Tribunal is its impugned order set aside the order of his removal from service and directed to pay 50% 21 OA-2701/2012 of the back wage till the dated of filing of the original application and full back wages form the dated filing of the original applications till the dated of reinstatement. This Court issued notice confined to the question of respondent's entitlement to back wages. It would be obvious that the respondent did not choose to join the duty for five years. There is nothing on the part of the State Government which prevented the respondent from attending to his duties. Under these circumstance, the Tribunal is wholly wrong in its direction to the appellants to pay 50% of the back wages from the date of his absence till the date of filing of the original application and back wage thereafter till his reinstatement. Accordingly, the appeal are allowed and the direction to pay back wages stand set aside. No costs."
17. In Durga Prasad (05/RB) (Constable) v. Govt. of NCT of Delhi, 2003 (68) DRJ 63, the Hon ble High Court of Delhi could view that the unauthorized absence is misconduct grave enough for imposition of penalty upon the delinquent. Relevant excerpt of the said judgment reads as under:-
"19. It is a well-settled principle of law that even if the period of absence, which had been regularized, is excluded, the same remains a misconduct which, in our opinion, would be sufficient to award dismissal of punishment. (See Binny Limited v. Their Workmen and Anr. ).
20. As regards the question raised by the learned counsel appearing for the petitioner that a separate notice was required to be issued to the petitioner for treating the said period of absence as dies non in terms of FR-17(A), we are of the opinion that it was not necessary to do so inasmuch as it was the disciplinary authority, who was to impose the said punishment. Furthermore, the petitioner had already been given an opportunity of hearing. The Rules do not provide for giving a further opportunity therefore, and as such the said submission cannot be accepted.
21. For the reasons aforementioned, there is no merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs."
18. In view of the aforementioned, we are not inclined to interfere with the impugned orders, the OA is found devoid of merit and is accordingly dismissed".
22 OA-2701/2012
23. Moreover, we find that in the Supreme Court judgment in Krushnakant B. Parmar (supra), the earlier Supreme Court judgment in the case of North Eastern Karnataka R.T. Corpn vs. Ashappa (2006) 5 SCC 137 has not been noticed. The relevant excerpt of the said judgment reads as under:-
"8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The Appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly.
9. In Delhi Transport Corporation v. Sardar Singh [(2004) 7 SCC 574], this Court opined:
"11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of para 4 of the Standing Orders shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised."
10. Yet recently in State of U.P. v. Sheo Shanker Lal Srivastava and Others [(2006) 3 SCC 276], it was opined that the Industrial Courts or the High Courts would not normally interfere with the quantum of punishment imposed upon by the Respondent stating:
"It is now well-settled that principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interfere with the quantum of punishment. Doctrine of proportionality can be invoked only under certain situations. It is now well-settled that the High Court shall be very slow in interfering with the 23 OA-2701/2012 quantum of punishment, unless it is found to be shocking to one's conscience."
11. The said principle of law has been reiterated in A. Sudharkar.v. Post Master General, Hyderabad and Anr.[2006 (3) SCALE 524] stating:
"Contention of Dr. Pillai relating to quantum of punishment cannot be accepted, having regard to the fact that temporary defalcation of any amount itself was sufficient for the disciplinary authority to impose the punishment of compulsory retirement upon the Appellant and in that view of the matter, the question that the third charge had been partially proved takes a back seat.
In Hombe Gowda Educational Trust and Another v. State of Karnataka and Others [(2006) 1 SCC 430], this Bench opined:
"The Tribunal's jurisdiction is akin to one under Section 11A of the Industrial Disputes Act. While exercising such discretionary jurisdiction, no doubt it is open to the Tribunal to substitute one punishment by another; but it is also trite that the Tribunal exercises a limited jurisdiction in this behalf. The jurisdiction to interfere with the quantum of punishment could be exercised only when, inter alia, it is found to be grossly disproportionate.
This Court repeatedly has laid down the law that such interference at the hands of the Tribunal should be inter alia on arriving at a finding that no reasonable person could inflict such punishment The Tribunal may furthermore exercises its jurisdiction when relevant facts are not taken into consideration by the Management which would have direct bearing on the question of quantum of punishment. Assaulting a superior at a workplace amounts to an act of gross indiscipline. The Respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as shock one's conscience.
A person, when dismissed from services, is put to a great hardship but that would not mean that a grave misconduct should go unpunished. Although the doctrine of proportionality may be applicable in such matters, but a punishment of dismissal from service for such a misconduct cannot be said to be unheard of. Maintenance of discipline of an institution is equally important. Keeping the aforementioned principles in view, we may hereinafter notice a few recent decisions of this Court."
12. In State of Rajasthan and Another v. Mohd. Ayub Naz [(2006) 1 SCC 589], this Court held:
24 OA-2701/2012 "For the foregoing reasons, we are of the opinion that a government servant who has willfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court, has no right to receive the monetary/ retrial benefits during the period in question. The High Court has given all retrial benefits which shall mean that a lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was willfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent"
13. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. No costs".
24. None of the judgments cited by Supreme Court in the above case of North Eastern Karnataka R.T. Corpn (supra) have been discussed and distinguished by the Supreme Court in its judgment in the above cited case in Krushnakant B. Parmar (supra). Therefore, we remain equally bound by those earlier Supreme Court judgments also.
25. Towards the end of the hearing, the Bench had put a question to the learned counsel for the applicant that when the Government Doctors had, through their certificate dated 12.05.2010 (page-17 of the OA), declared the applicant's absence from 08.09.2009 to 01.06.2010 as essential, and had held that he is fit to resume his duties from 02.06.2010, why he did not join the duties on 02.06.2010, and had to later approach the Private Doctor and obtain another medical certificate dated 04.09.2010 for the period from 02.06.2010 to 14.09.2010, and could then report for duty only on 14.10.2010. Learned counsel for the applicant had replied that since even as on 02.06.2010, the applicant was not feeling well enough to 25 OA-2701/2012 be able to report for duty, he had decided not to report for duty, and had decided to approach the Private Doctor for further treatment, which had been certified by the Private Doctor through his certificate dated 04.09.2010. Thus it is clear that the applicant had himself chosen to over-ride the wisdom of the Government Doctors, of his own accord.
26. Therefore, in the instant case, in accordance with the law as laid down in the judgment of the Supreme Court in Delhi Transport Corporation vs. Sardar Singh (2004) 7 SCC 574, as cited by the Supreme Court itself in North Eastern Karnataka R.T. Corpn (supra), we hold that the element of wilfullness of absence of the applicant, even if such wilfullness was not present for the period till 01.06.2010, as certified by the Government Doctors of Rajiv Gandhi Government General Hospital, Alwar, Rajasthan, through their certificate dated 12.05.2010, for the period upto 01.06.2010, but the will of the applicant had entered into the picture at least thereafter. After the Government Doctors having declared him fit to resume his duties w.e.f. 02.06.2010, it was willful on the part of the applicant at least from 02.06.2010 onwards, to have not reported for his duty upto 14.09.2010, in respect of which period of absence he could get only a Private Doctor to issue the second medical certificate dated 04.09.2010, as discussed above.
27. Therefore, whatever may be the reason and cause for the applicant to have taken it upon himself to decide not to report 26 OA-2701/2012 for his duties on 02.06.2010, from which date he was declared by the Government Doctors to be medically fit to re-join his duties, the willfulness aspect of the applicant's absence had entered at least thereafter from 02.06.2010 onwards. Therefore, the applicant cannot be allowed to now plead that the whole period of 371 days of his absence was not willful, and was, therefore, covered under the judgment of the Hon'ble Apex Court in Krushnakant B. Parmar (supra). The respondent- authorities have rightly treated his absence to be willful, and we also hold so, relying upon the Hon'ble Supreme Court judgments in North Eastern Karnataka R.T. Corpn (supra), in Maan Singh vs. Union of India & Ors. 2003 (3) SCC 464, as well as in State of U.P. & Ors. vs. Ashok Kumar Singh & Another (1996) 1 SCC 302, and other judgments on the same lines.
28. Therefore, we find no merit in the pleadings and the arguments of the applicant and his learned counsel, and we do not find that the applicant to be eligible to claim protection under the Supreme Court judgment in the cases of Chhel Singh (supra) and Krushnakant B. Parmar (supra). The OA is, therefore, dismissed having no merit at all, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.