Central Administrative Tribunal - Delhi
Sant Ram vs Comm. Of Police on 28 July, 2016
1 OA No.1789/2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1789/2012
New Delhi this the 28th day of July, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. V.N. GAUR, MEMBER (A)
Head Constable Sant Ram,
S/o Shri Sarjit Singh
R/o Village and Post Office Bara Gulabathi
Distt. Bulandshahar, U.P. .. Applicant
(Argued by: Shri Gyanendra Singh, Advocate)
Versus
1. Commissioner of Police,
Police Head Quarters,
ITO, New Delhi.
2. Addl. Dy. Commissioner of Police,
Central - Distt. Delhi,
New Delhi.
3. Joint Commissioner of Police,
Northern Range, Delhi
New Delhi. ..Respondents
(By Advocate: Mr. Vijay Pandita)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) Applicant, HC Sant Ram, S/o Shri Sarjit Singh, has preferred the instant Original Application (OA), challenging the impugned orders dated 27.04.2011 (Annexure A-2), whereby a penalty of dismissal from service with immediate effect was imposed on him by the Disciplinary Authority (DA) and dated 06.01.2012 (Annexure A-1), vide which his dismissed appeal filed by the applicant was dismissed by the Appellate Authority (AA) as well.
2 OA No.1789/2012
2. The sum and substance of the facts and material, relevant for deciding the present OA, exposited from the record is that, applicant remained wilfully absent from his duty and thus was stated to have committed the misconduct during the course of his employment. Accordingly, he was dealt with departmentally, under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter to be referred as "D.P. Rules"). A Departmental Enquiry (DE) was initiated against him, vide order dated Nil (Annexure A-4) and the Enquiry Officer (EO) was appointed, by the competent authority.
3. The EO, after recording the evidence and following the due procedure of enquiry under the D.P. Rules, issued the following summary of allegation to the applicant:-
"It is alleged against HC Sant Ram No. 12/C (PIS No. 28821567) that while posted at police station Karol Bagh you remained absent from duty wilfully and unauthorisedly on the following different occasions :-
Sl. D.D. No. & Date of D. D. No. & Date of Period of Absence No. Absence arrival Days Hours Minutes
1. 32 b, dt. 02.10.07 23. B, dt. 07.10.07 04 23 00
2. 5 B, dt. 05.11.07 55 B, dt. 07.12.07 32 24 00
3. 2 B, dt. 17.12.07 65 B, dt. 03.03.08 76 22 00
4. 57 B, dt. 16.05.08 65 B, dt. 12.09.08 119 18 45 Total 223 15 45 During the period of absence, two absentee notices (sic) were issued at permanent address vide Nos. 1378-82/SIP(AC)/C, dated 18.01.2007 and 13842-846/SIP(AC)/C, dated 02.09.2008 with the direction to report on duty at once, failing which departmental action will be taken against him and in case of illness he should report to the Chief Medical Officer (U.P.) for second medical opinion. But, he did not bother to report on duty and remained absent from duty wilfully and unauthorizedly.
It is also alleged against him that while posted at police station Karol Bagh he was required to report for D.B.G. Road picket duty but he did not report for duty nor did sent any intimation about his absence hence he was 3 OA No.1789/2012 marked absent vide D.D No. 72-B dated 10.03.2009, during the period of absence, one absentee notice was issued at his permanent address vide No. 7331-35/SIP(AC)/C dated 23.03.2009 with the direction to report for duty at once, falling which departmental action will be taken against him and in case of illness he should report to the Chief Medical Officer (U.P.) for second medical opinion. But he did not bother to report on duty and is still running absent unauthorisedly in contravention of S.O. No. 111 and rule 19.5 of CCS (Leave) Rules, 1972.
Previously also he remained absent for 57 different occasions for which he was awarded punishment/reprimanded but he did not amend himself and again absented himself wilfully and unauthorizedly.
The above act said on the part of HC Sant Ram, No. 12/C amounts to gross misconduct, negligence, dereliction and irresponsible behaviour (sic) in performing his official duties which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980".
4. The EO appreciated the evidence and concluded that the charges framed against the applicant, stand fully proved, vide enquiry report dated 14.03.2011 (Annexure A-3).
5. Agreeing with the findings of the EO, the DA awarded the indicated punishment to the applicant (Annexure A-2), which was upheld by the AA vide order (Annexure A-1).
6. Aggrieved thereby, the applicant has preferred the instant OA, challenging the impugned enquiry report and orders, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985.
7. The case set up by the applicant, in brief, in so far as relevant, is that, he was wrongly charged for unauthorised absence, as he had availed medical rest after informing the Department through UPC. The DA has also taken into consideration his previous absence, while imposing the penalty. The doctor had advised him medical rest from 03.11.2010 to 09.03.2011 and declared him fit to resume duty on 10.03.2011, but the DA overlooked the genuine cause of the applicant. The 4 OA No.1789/2012 punishment of dismissal awarded to the applicant, on account of his absence from duty, was stated to be excessive. It was alleged that even AA has not considered the medical record of the applicant and dismissed the appeal of the applicant by a non-speaking order.
8. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, according to the applicant, the impugned orders are illegal, arbitrary, whimsical, without jurisdiction and against the principles of natural justice. On the basis of aforesaid grounds, the applicant has sought quashing of the enquiry report as well as the impugned orders, in the manner indicated hereinabove.
9. The respondents refuted the claim of the applicant and filed their reply wherein, it was pleaded that he remained wilfully and unauthorizedly absent for 233 days, 15 hours and 45 minutes. It was further pleaded as under:-
"During the absence period of the applicant, two absentee notices (Annexure R-1) were issued at the permanent residential address of the applicant vide Nos. 1378-82/SIP (AC)/C dated 18.1.2008 and 13842-846/SIP (AC)/C, dated 2.9.2008 with the directions to report for duty at-once, failing which departmental action will be taken against him and in case of illness he should report to the Chief Medical Officer, Bulandshahar (UP) for second medical opinion. He did not bother to report for duty and remained absent from duty wilfully and unauthorizedly for a period of 233 days.
Besides, above, again while the applicant was posted at PS Karol Bagh, he was required to report at D.B. Gupta Road, Picket duty but neither he reported on duty nor sent any intimation about his absence, hence he was marked absent vide DD No. 72-B dated 10.03.2009. During the period of absence, one absentee notice (Annexure R-2) was issued at his permanent residential address vide No. 7331-35/SIP(AC)/C dated 23.03.2009 with the, direction to report for duty at-once, failing which departmental action will be taken against him and in case of illness he should report to the Chief Medical Officer, Distt. Bulandshahar (U.P.) for second medical opinion. He did not report for duty and kept running absent unauthorizedly, till the initiation of Departmental Enquiry (the applicant Ex. H.C. resumed his duties vide DD no. 42B dated 11.03.2011 PS I.P. Estate) in contravention of S.O. No. 111 and Rule 19.5 of CCS (Leave) Rules, 1972.5 OA No.1789/2012
Previously also the applicant remained absent on 57 different occasions (Annexure R-4) for which he was awarded punishment/reprimanded but he did not mend himself and again absented himself wilfully and unauthorisedly.
Initially, the Departmental Enquiry was entrusted to Inspr, Narender Singh, Inspr./BDT, Central District, Delhi. Later on, the same was completed by Inspr. Birender Kumar Singh, (E.O) Inspr./Invst. PS Anand Parbat, who submitted his findings (Annexure R-5) concluding therein that from the evidence came on the file and circumstances the charge against applicant Ex. Head Constable Sant Ram, No. 12/C stands proved (sic).
Tentatively, agreeing with the findings of the E.O., a copy of the same was served upon the applicant vide this office U.O. No. 4150/HAP/AC-II/C, dated 21.03.2011 (Annexure R-6) for submitting his written representation within 15 days. He received the findings on 25.03.2011 against his proper receipt as such his representation, if any was required to reach on or before 10.04.2011 but he did not bother to submit the same.
The Disciplinary Authority had 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 to DE file during DE proceedings. Applicant Ex. Head Constable Sant Ram, No. 12/C was also called in O.R. on 21.04.2011 to hear him in person for the fair play and natural justice. During O.R., he only stated that he was ill but he did not submit any medical papers in support his version. The applicant did not submit his written representation against the findings served upon him. All this shows clearly that he has nothing in his defence. The evidence came on record/DE file are also against the applicant Ex. Head Constable. He remained absent from his duties wilfully and unauthorisedly without intimation to the department. Police is an emergency service and long absence from the duty without any valid reason strikes at the discipline of the force. In view of current security scenario of the country, Delhi Police Department requires most devoted and dedicated persons. He has violated the provisions contained in Rule 19 (5) of CCS (Leave) Rules, 1980 and SO No. 111 of Delhi Police in this fashion. Absenteeism in the force is a very serious matter because it cripples the entire administration of the police department. Each and every, police personnel (sic) are (sic) 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 the applicant Ex. Head Constable which calls for exemplary punishment. This was also an act of indiscipline on the part of Ex. Head Constable Sant Ram, No. 12/C (PIS No. 28821567) and it has also been established that the applicant had absented himself wilfully and unauthorisedly. In a disciplined force, wilful and unauthorised absence, if taken lightly, will not only encourage other members of the force but also destroy the whole fabric of discipline."
10. Virtually acknowledging the factual matrix and reiterating the validity of the impugned orders, the respondents have stoutly denied all other allegations and grounds contained in the main OA and prayed for its dismissal.
6 OA No.1789/2012
11. After hearing the learned counsel for the parties, having gone through the record with their valuable help and after considering the entire matter, we are of the considered view that there is no merit, and the instant OA deserves to be dismissed for the reasons mentioned herienbelow.
12. Ex-facie, the arguments of learned counsel that since there is no cogent evidence of wilful absence of the applicant on record, so the impugned enquiry report and orders are arbitrary and illegal, is not only devoid of merit but misplaced as well.
13. As is evident from the record that the applicant remained absent for 233 days, 15 hours and 45 minutes, and thus committed the grave misconduct. In order to substantiate the charges alleged against the applicant, the prosecution has examined PW-1 HC Atender Singh, PW-2 HC Sat Pal Singh and PW-3 Ct. Bhagat Singh. PW-1 has duly produced and proved the relevant Roznamcha containing the entries of absence of the applicant and absentee notices dated 18.01.2007, 28.03.2008, 02.09.2008, 23.01.2009 and 02.02.2009. PW-2 maintained that, despite issuance of various pointed notices, the applicant did not submit the reply to the explanation in spite of proper receipts. The applicant did not cross-examine the prosecution witnesses, i.e., PW-1 to PW-3, despite adequate opportunity, for the reason best known to him. Not only that, the applicant sought 2 (two) adjournments for filing the defence statement, but neither he submitted his defence statement nor thereafter joined the DE nor produced any defence evidence. That means, 7 OA No.1789/2012 the evidence brought on record by the prosecution remains unchallenged and unrebutted. In this backdrop, the EO has rightly concluded that charges levelled against the applicant stand proved.
14. Agreeing with the findings of the EO, considering the material on record and after following the due procedure, the indicated penalty of dismissal from service was imposed on the applicant, vide impugned order dated 27.04.2011 (Annexure A-
2) by the DA. The operative part of the order reads as under:-
"I have very carefully gone through the DE file including DE order, summary of allegations etc., statement of PWs, charge and other material came on DE file DE proceedings. Delinquent Head Constable Sant Ram, No.12/C was also called in OR on 21.04.2011 to hear him in person for the fair play and natural justice. During OE, he only stated that he was ill but he did not submit any medical papers in support of his version. The delinquent Head Constable did not submit his written representation against the findings served upon him. All this shows clearly that he has nothing in his defence. The evidence came on record/DE file are also against the delinquent Head Constable. He remained absent from his duties wilfully and unauthorizedly without intimation to the department. Police is an emergency service and long absence from duty without any valid reason strikes at the discipline of the force. In view of current security scenario of the country, Delhi Police Department requires most devoted and dedicated persons. He has violated the provisions contained in Rule 19(5) of CCS (Leave) Rule, 1980 and SO No.111of Delhi Police in this fashion. Absenteeism in the force is a very serious matter because it cripples the entire administration of the police department. Each and every police personnel (sic) 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 the delinquent Constable which calls for exemplary punishment. This is also an act of indiscipline on the part of Head Constable Sant Ram, No.12/C (PIS No.28821567) and it has also been established that delinquent Head Constable had absented himself wilfully (sic) and unauthorisedly. In a disciplined force, wilful (sic) and unauthorised absence, if taken lightly, will not only encourage other members of the force but also destroy the whole fabric of discipline".
15. Sequelly, all the issues raised by the applicant were duly considered and the appeal filed by him was dismissed, vide impugned order dated 06.01.2012 (Annexure A-1) by the AA.
16. The learned counsel for the applicant then urged, that the impugned punishment order of DA is based on his previous 8 OA No.1789/2012 conduct/absence, which is illegal. We are afraid, that we cannot accept this argument.
17. A bare perusal of the record would reveal that the applicant was served with a clear and specific charge for wilful and unauthorized absence for 233 days, 15 hours and 45 minutes. It has only been mentioned in the charge sheet, that record of the applicant also shows, that he is a habitual absentee and did not mend himself. It has also been so mentioned in the order of the DA, that he has absented himself on 57 different occasions and was running absent, without any intimation to the Department. The mere mentioning of the fact of his previous absence in the impugned order, ipso facto, is not a ground, much less cogent, to assume that the DA has awarded the punishment to the applicant on the basis of his previous misconduct/absence. Indeed, the applicant was punished for absence of 233 days, 15 hours and 45 minutes, which was the subject matter of the charge sheet and not otherwise.
18. Moreover, the Hon'ble Apex Court in the case of U.O.I. & Others Vs. Bishamber Das Dogra (2009) 13 SCC 102 has ruled that in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision of imposing the punishment, if the facts of the case so require. It was also 9 OA No.1789/2012 held that habitual absenteeism means, gross violation of discipline.
19. An unsuccessful attempt has been made by learned counsel that the absence of the applicant was not wilful, as he could not attend his duty on account of his illness. This argument is again not tenable and deserves to be dismissed for more than one reason. At the first instance, the applicant has neither made his statement of defence, that he was absent on account of his illness nor has produced any medical evidence in this regard, during the course of enquiry.
20. No doubt, the applicant has claimed that he has sent the information of his illness to the Department through UPC receipts dated 05.11.2007, 17.12.2007 and 16.05.2008 (attached with the OA), but he has not even produced the copy of any such letter. The mere production of photo-stat copies of alleged UPC postal receipts (the authenticity of which is doubtful), is not at all sufficient to infer that, he actually sent the medical certificate to the authorities in the absence of any cogent proof, particularly when he has neither made any such statement of defence nor produced any medical record during the course of enquiry. The mere production of photostat copies of medical treatment of fewer & pain, and photostat copies of treatment of subsequent period, with this OA (Annexure-A to Annexure P Colly.)(the genuineness of which is also doubtful), will not advance the cause of the applicant in any manner, in 10 OA No.1789/2012 the absence of production of medical record before the EO, during the course of enquiry.
21. Above all, the applicant cannot claim illness leave as a matter of right, as contemplated under SO 111 (Annexure A-8) and Rule 7 of the CCS (Leave) Rules, 1972 (hereinafter to be referred as "Leave Rules"). Besides Rule 7, Rule 19 (1)(ii) postulates that, in respect of a non-Gazetted Government servant, an application for leave on medical grounds shall be accompanied by a medical certificate Form 4 given by a CGHS doctor. According to Rule 25(2) of Leave Rules, the wilful absence from duty after the expiry of leave, renders a Government servant liable for disciplinary action.
22. Moreover, assuming for the sake of argument (though not admitted), if applicant was seriously sick, even then he has to inform the department and ought to have got his leave sanctioned from the competent authority as per relevant rules, in view of the ratio of judgment of this Tribunal in OA No.1320/2013 decided on 28.02.2014 titled as Ramesh Kumar Vs. The Commissioner of Police and Others, which is totally lacking in the present case.
23. What cannot possibly be disputed here is that wilful absence from duty by a Government servant, is a serious misconduct. The Hon'ble Apex Court in the case of Mithilesh Singh Vs. Vs. U.O.I. & Others AIR 2003 SC 1724 has ruled that absence from duty without prior intimation is a grave offence warranting removal from service. Similarly, the Hon'ble 11 OA No.1789/2012 Supreme Court in the case of State of U.P. and Others Vs. Ashok Kumar Singh (1996) 1 SCC 302, held that 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.
24. The reliance in this regard can also be placed on the judgments of the Hon'ble Apex Court in the cases of North Eastern Karnataka Road Transport Corporation vs. Ashappa, (2006) 5 SCC 137 and State of Rajasthan vs. Mohd. Ayub Naz: 2006 SCC (L&S) 175, wherein, it was held that habitual absenteeism can be a valid ground for dismissal of an employee from service. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, he may be removed from service.
25. Meaning thereby, the wilful and unauthorised absence of the applicant is duly proved on record. The DA and AA have correctly appreciated the matter in the right perspective. In this backdrop, it cannot possibly be saith that the punishment awarded to the applicant is excessive, as urged on his behalf.
26. Furthermore, the jurisdiction of judicial review of this Tribunal in such disciplinary matters is very limited. The 12 OA No.1789/2012 Hon'ble Apex Court while considering the jurisdiction of judicial review and rule of evidence in the case of B.C. Chaturvedi Vs. U.O.I. & Others AIR 1996 SC 484 has ruled as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
27. Similarly, the Hon'ble Apex Court in the case of K.L. Shinde v. State of Mysore, (1976) 3 SCC 76, having 13 OA No.1789/2012 considered the scope of jurisdiction of this Tribunal in appreciation of evidence has ruled as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re- examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and 14 OA No.1789/2012 admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
28. Therefore, taking into consideration the material and evidence on record and the legal position, as discussed herein above, we are of the considered opinion that the EO has correctly evaluated the evidence of the prosecution. The DA has rightly imposed the indicated punishment, which was upheld by the AA. The DA as well as AA have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. Hence, no interference is warranted in this case by this Tribunal, in the obtaining circumstances of the case.
29. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
30. In the light of the aforesaid reasons and thus seen from any angle, there is no merit and hence the OA deserves to be and is hereby dismissed, as such. However, the parties are left to bear their own costs.
(V.N. GAUR) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
28.07.2016
Rakesh