Central Administrative Tribunal - Delhi
Ramesh Chander vs Govt. Of Nct Of Delhi on 31 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1342/2007 New Delhi this the 31st day of October, 2008 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Ramesh Chander, Ex. Ct. of Delhi Police, PIS No. 28823757 R/o House No. 909/4, Ashok Vihar Colony, Near 22 feet Road, Line Cross, Bahadurgarh, Distt. Jhajjar, Haryana. .. Applicant. (By Advocate Shri Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police, PHQ, IP Estate, New Delhi. 2. Addl. Commissioner of Police Security (PM), Security Lines, Chankya Puri, New Delhi. 3. D.C.P. (8th Bn. DAP) Through Commissioner of Police PHQ, IP Estate, New Delhi. Respondents. (By Advocate Shri Ajesh Luthra) O R D E R
Honble Mr. Justice M. Ramachandran, Vice-Chairman (J) The respondents felt that the applicant was unfit, for continued employment under them as a constable, in view of the circumstances that he had a habit of remaining unauthorizedly absent for exceptionally long spells, and by order dated 01.04.2005, had removed him from service as a penalty. Annexure A-6 was the appellate order. Addl. Commissioner of Police held that he fully concurred with the decision of the disciplinary authority and had rejected the appeal. The Original Application came to be filed in the aforesaid circumstances. It is also relevant that although opportunity had been offered to the applicant to partake in the inquiry, he had not turned up for defending himself.
2. As required by the rules, formal charges framed had been served upon the delinquent constable and he had been asked to submit the list of witnesses, if any as well as his defence statement. On that occasion, he had given a letter that for some reasons he was mentally upset and, therefore, will not be attending before the inquiry officer or the Deputy Commissioner of Police. He had pleaded that his interests may be taken care of. The report was, therefore, finalized ex parte. The inquiry officer came to a conclusion that the charges also had been proved which resulted in an Annexure A-5 order of removal.
3. The principal contention raised by the applicant is that the disciplinary proceedings initiated against him suffer from basic irregularities, as he was put into a position equivalent to double jeopardy. Mr. Singal submits that prejudice had already be fallen on him on the score. By Annexure A-7 dated 07.10.2002, the Additional Dy. Commissioner of Police had informed him that he had been absent on five spells starting from 17.11.2000 to 20.05.2002. It also stated that the above conduct amounted to gross misconduct and dereliction of duties. Still more, he had been informed that if he did not show cause within fifteen days of the receipt of the notice, the period will be treated as dies non for all purposes. A similar show cause notice had been issued as Annexure A-8 on 31.12.2002 as well, alleging that he was absent from 07.06.2002, running to 61 days and if he did not show cause, the period will be treated as dies non. As a matter of fact, it is submitted that Annexure A-8 had been followed by Annexure A-9 on 17.05.2003 whereby the period of 61 days had been treated as period not spent on duty and was not being regularized. The plea taken by the counsel is that when Annexure A-1 was issued thereafter on 14.05.2003, the unauthorized period referred to in the earlier orders were also shown as absent period, and in fact, denovo, absence for this period was alleged as a misconduct actionable under the CCS (Conduct) Rules. Counsel further submits that Annexure A-3 charge of 19.05.2003, further incorporated instance of unauthorized absence for a further period of 99 days, as well. The submission was that when a show cause notice had been issued and the period of unauthorized absence had been shown as having been treated as dies non, in respect of the same period, further disciplinary proceedings could not have been initiated, since the jurisdictional and correctional power vis a - vis the lapse stood already exercised. What was presently wielded amounted to a review, and so long as statute did not confer such power, the proceedings were void.
4. The second aspect highlighted is that there was a material difference, between the first order served and the charge issued, as additional period of absence had been incorporated and although in the final order, only the original absence had been found as highlighted and proved, the charges were imprecise and, therefore, it was not possible of being comprehended and defended.
5. Mr. Singal also submits that it was a case where the applicant was having mental disturbance, and instead of taking sympathetic view, an inhuman treatment has been meted out to him. The action offended the right to life of a person, envisaged under Article 21 of the Constitution of India. Disciplinary proceedings culminating into the removal require to be set aside, therefore, as compassion should have been the touch stone.
6. In support of the submissions, learned counsel had relied on a decision of the Delhi High Court reported as Delhi Administration and Anr. Vs. Constable Yasin Khan (86 (2000) Delhi Law Times 144). The proposition was that when there is defect in chargesheets, punishment order should go altogether, as an exercise of segregation would not have been possible to be done. Counsel had also relied on a decision of a Bench of this Tribunal in OA 2843/05 contending that when once a period of dies non, is imposed, the second proceedings proposed against the employees for the same conduct, especially if graver by comparison should be considered as perpetrating prejudice. Mr. Anil Singal submits that in the above view of the matter, the impugned orders required to be interfered with.
7. Mr. Ajesh Luthra on behalf of the respondents submits that the contentions as raised by the applicant were not at all sustainable. It was a case of chronic absentism. The initial advise given over to the applicant, that the period is being treated as dies non, was intended to straighten the records. He submits that prescription of dies non could not have been equated to imposition of a penalty. Referring to Rule 5 of the Delhi Police (Punishment and Appeal) Rules, he submits that nine items of punishment are listed and it do not include dies non. Punishments have been categorized as major and minor punishments, but regularization of services as dies non could not have come to be recognized as an penalty. All the more, by later proceedings such orders had been recalled. In view of the chronic absentism as forthcoming from his part, it had been decided to initiate action under the Discipline and Appeal Rules. However, there was no co-operation forthcoming as expected of a disciplined person and the proceedings had been conducted ex parte in the aforesaid circumstances. The applicants plea that he was mentally disturbed, was a statement coming from him, never corroborated, and such a plea could not have been possible to be entertained as the person was coming off and on to attend to the work and keeping away as he liked. It showed a conduct whereby it would have been possible to assume that he was unfit to be accommodated in service. The enquiry fully substantiated the misconduct, and there was no reason for interference.
8. Mr. Luthra also had referred to a decision reported in 1996 (3) SCC 750 and especially paragraph 7 thereof to submit that there was no confusion at any point of time, and even if a position was postulated that the period of dies non, as recognized earlier had been eschewed, there was further unauthorized absence as substantiated in the inquiry, unexplained and this being the position, the disciplinary authority could not have been blamed as being arbitrary in the matter of coming to the decision.
9. We find that the respondents had recalled their orders, or not pursued further course in respect of the periods, which were proposed to be treated as dies non. We are also of the view that even if a specific period is treated as dies non, that by itself cannot be equated to imposition of a penalty as envisaged under the Discipline and Appeal Rules. In spite of such declaration, it is within the right of an employer to require the employee concerned, to show cause as to why disciplinary action should not be initiated for the unauthorized absence which as a matter of fact has come to be recorded. From the proceedings, we also find that in spite of opportunities being offered, the applicant had turned his face away and has not bothered to partake in the inquiry. Principles of natural justice, has to ensure that there is no arbitrariness involved while dealing with the rights of a person. If a person is relunctant to defend himself in spite of being offered an opportunity, it may not be possible for him at a later stage to come and complain that he has been subjected to prejudice. There is nothing to indicate that he was mentally sick, but the conclusion can be that he was acting irresponsibly. In the totality of the circumstances, definitely we come to the conclusion that there has not been any arbitrariness on the part of the respondents in dealing with the case of the applicant. The imposition of penalty was, therefore, warranted. We dismiss the application. However, there will be no order as to costs.
(N.D. DAYAL) (M. RAMACHANDRAN) MEMBER (A) VICE CHAIRMAN (J) `SRD