Central Administrative Tribunal - Delhi
Ex Si Ram Niwas Meena (D-4126) vs The Commissioner Of Police on 12 November, 2013
Central Administrative Tribunal Principal Bench O.A. No.1527/2012 Order reserved on: 28.11.2013 Order pronounced on: 11.12.2013 Honble Mr. V. Ajay Kumar, Member (J) Honble Mr. V.N. Gaur, Member (A) Ex SI Ram Niwas Meena (D-4126) S/o Shri Balooram Meena, Vill. Bajeer Pur, P.O. Barria via Kurgaon, The. & Distt. Karauli, Rajasthan. -Applicant (By Advocate Shri Sachin Chauhan) Versus 1. The Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O. Building, New Delhi. 2. The Additional Commissioner of Police: Principal, P.T.C.: Jharoda Kalan, Delhi. -Respondents (By Advocate Shri Vijay Pandita) O R D E R Mr. V.N. Gaur, Member (A):
The applicant joined the Delhi Police as a Constable in the year 2001 and after serving for about 07 years he appeared in the examination for recruitment to the rank of Sub Inspector (SI) in Delhi Police and was selected for appointment. He joined the Delhi Police Training College on 22.07.2008. While undergoing basic training he proceeded on casual leave for one day on 22.10.2008 but did not report back till 22.11.2008 after absenting himself for 29 days, 09 hours and 30 minutes. He submitted medical certificate for the period of absence from an authorized Medical Officer. On 22.06.2009 he again absented from training Institution as a result of which he was disqualified to appear in the final examination due to short attendance and re-batched vide order dated 09.09.2009 with a direction to undergo training with the next batch of PSIs of Delhi Police. He was directed to report at once vide order dated 22.10.2009. However, the applicant resumed his training on 24.02.2010 after a lapse of 08 months 01 day, 21 hours and 30 minutes. The respondent no.2 vide order dated 13.01.2011 imposed a penalty of removal from service on the applicant on the basis of the finding of the enquiry officer (EO). The appeal filed by the applicant against this order was also rejected by respondent no.2 by order dated 25.11.2011.
2. According to Shri Sachin Chauhan, learned counsel appearing for the applicant, it is an admitted fact that the applicant had absented himself from training, as mentioned in the order passed by the disciplinary authority (DA). However, the applicant had submitted valid medical certificate after his absence in the first training programme. The same was considered and only after that the applicant was allowed to be re-batched and joined the next training programme for the PSIs. Due to domestic compulsions the applicant could not report to the training college as per the direction given vide letter dated 22.10.2009 but he again submitted medical certificate covering the period of absence from an authorized Medical Officer. The learned counsel referred to the report of the EO where it has been observed that the applicant had submitted documents of Primary Health Centre, Dhausa, Rajasthan. It implies that he is taking alibi on false pretext. Thus the EO had exceeded his jurisdiction by doubting the medical certificate submitted by the applicant without taking opinion from an expert body, like a Medical Board. The DA did not address this lacuna in the report of the EO in its order and the appellate authority (AA) also failed to specifically address this point raised by the applicant in his representation to the AA. This was a serious lapse in the disciplinary proceedings, which made the order of the AA for being quashed. The learned counsel submitted that it is trite that the DA while taking a decision has to consider only the findings of the EO in respect of the charge memo and he cannot base his conclusion or decision on the basis of subsequent conduct of the charged officer. In this case while imposing penalty on the applicant the DA got prejudiced by the fact that the applicant was absent till date while the charge was directed to the absence of the applicant for specific periods in the years 2009 and 2010. The learned counsel relied on this Tribunals order in OA No.1048/1999 dated 27.11.2000. The learned counsel also referred to the rejoinder where it has been reiterated that the EO had erred in not referring the medical certificate submitted by the applicant for a second medical opinion in case the same was doubted. He placed reliance on the judgment of this Tribunal in OA-2388/2003, wherein this Tribunal had held:
It is trite law that once a government servant tenders medical certificate issued by an authorized 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. The learned counsel also referred to the order of this Tribunal in OA-2384/2005 delivered on 05.04.2007 of similar nature. The issue of proportionality of the punishment awarded by the D.A. was also raised. It was submitted that this was a fit case for the Tribunal to interfere in the order passed by the DA/AA imposing the punishment of removal from service. The learned counsel relied on the decision of the Honble Apex Court in Union of India & Anr. V. Ganayutham, decided on 27.08.1997 and the judgment of this Tribunal in OA-1748/2011 H.C. Naresh Kumar v. The Commissioner of Police & Others, decided on 01.12.2011.
3. Shri Vijay Pandita, learned counsel appearing for the respondents submitted that in a uniformed force, indiscipline cannot be allowed. The applicant absented himself on the first occasion for about 29 days but he was allowed to resume his training but he again absented himself from 22.06.2009 and as a result his attendance were short for taking the final examination. The respondents took a lenient view and re-batched him with the next batch, which he again failed to comply in defiance of the OM dated 22.10.2009. Later he joined duty only on 24.02.2010. The DA after following the laid down procedure as per Delhi Police (Punishment and Appeal) Rules, 1980 imposed the penalty of dismissal from service. He made reference to the Standing Order no.291/2008 of Delhi Police that provides that more than 14 days continuous unauthorized absence from the daily outdoor/indoor programme by the Probationary SI shall be sufficient ground for initiating disciplinary action against the Probationary SI. In the present case the applicant had absented himself for a period more than 29 days on the first occasion and has been continuously absent since 22.06.2009 to date willfully and unauthorizedly. It has been also pointed out in the counter-affidavit filed by the respondents that a copy of the findings of the EO was served on applicant vide UO dated 15.07.2010 through a special messenger sent to his native village in Rajasthan with the direction to submit his written representation/ submission against the findings of the EO within 15 days. The applicant did not submit any representation. He was directed to report to the DA for personal hearing for fairness and natural justice but he again failed to turn up despite giving him three notices through special messenger. Learned counsel further submitted that the applicant had served Delhi Police as a Constable for 07 years and, therefore, was well conversant with the procedure for obtaining medical leave. In this case he absented himself for long periods on two occasions but had at no point in time either applied for leave in advance or, if he fell sick or there was any domestic problem, did not send any written communication to the controlling officer. Only after resuming the duty he submitted medical certificate from Government Ayurvedic Hospital, Shahpur, District Alwar, Rajasthan. According to the instructions the permission of the competent authority is required to avail medical rest and the information regarding extension of medical rest is to be given to the department from time to time, which was not done by the applicant. He also denied that the department had ever received any telephonic message about his illness from his home town. The learned counsel also referred to the preliminary objection raised in the counter-affidavit with regard to the power of the Tribunal to interfere in the penalty imposed by the disciplinary authority or to re-appreciate the evidence, relying on:
i) State of U.P. v. Ashok Kumar Singh, (1996) 1 SCC 302.
ii) Union of India v. Sardar Bahadur, 1972 (2) SCR 225.
iii) Union of India v. A. Nagamalleshwara Rao, AIR 1998 SC 111.
iv) B.C. Chaturvedi v. Union of India & Others, (1995) 6 SCC 749.
v) State of Tamil Nadu v. S. Subramanyan, (1996) 7 SCC 509.
vi) State of Tamil Nadu v. K.V. Perumal, (1996) 5 SCC 474.
4. We have considered the submissions made by both the sides and gone through the pleadings on record. The applicant has challenged the orders passed by the DA and AA mainly on three grounds: (i) that his medical certificate explaining the reasons for his absence has not been given due consideration and a doubt has been expressed about his illness without referring him for an expert opinion; (ii) The DA while passing the penalty order took into consideration the absence of the applicant even beyond the period mentioned in the charge memo; and (iii) In its order the AA has not dealt with the issue of quantum of punishment raised before it by the applicant in his representation.
5. As far as the first ground is concerned, the EO has made the following observations under the columns Discussion and Conclusion:
DISCUSSION From the statement of the PWs during the enquiry process, other documents available in D.E. file, it is clear that the delinquent had absented himself on two occasions. As regards his these absences for which the DE was initiated, he has stated in his defense statement that he was ill and remained under treatment in the hospital. He has submitted documents of Primary Health Centre, Dhausa, Rajasthan. It implies that he is taking alibi on false pretext. The absentees are also unauthorized because he could have got his leave sanctioned for this pretext or he could have informed the department about his leave. But he did not bother to do so rather absented himself willfully and unauthorized.
CONCLUSION From the above discussion, it is clear that the delinquent absented himself unauthorized and willfully and he never bothered to inform the department for any of his unauthorized absences and also without seeking any permission from his senior officers. He has taken false alibi for his absence. Hence, the charge framed against the delinquent PSI Ram Niwas, No.D-4126 is PROVED. The EO has emphasized on unauthorized and willful absence of the applicant from the training, as he never bothered to inform the department about his absence nor he sought permission from any of his senior officers. This conclusion of not obtaining prior or informing the controlling officer during the long period of absence of the applicant has been admitted. The learned counsel of applicant has repeatedly submitted that the absence of the applicant was not willful as he was sick and for which he produced valid medical certificates. However, he has not been able to explain as to why the applicant was not in a position to send a communication for months together to his controlling officer about his inability to attend the training programme. The applicant having served a Government department, i.e., Delhi Police, as Constable for 07 years would know, more so, having been in a uniformed force, that for any absence, or leaving station, the controlling officer had to be informed. The fact that the applicant did not do so would only point towards the conclusion that he was absenting himself willfully unless the applicant was so sick for whole of the period that he was not able to either by himself, or tell any of the persons attending on him to, send a communication to the controlling officer about his sickness. The applicant has not pleaded or placed on record any document to show that he was indeed so sick during this period that he was not in a position to take aforesaid action. It is apparent that even if the medical certificates produced by him are taken on its face value and not to be treated as doubtful, as was done by the EO, the charge of unauthorized or willful absence will continue to subsist against him. We, therefore, do not agree with the submission of the learned counsel for the applicant that the act of EO in not referring the medical certificates for second medical opinion or putting the medical certificates produced by the applicant in the category of doubtful, has prejudicially affected the applicant.
6. As regards the second ground taken by the applicant, it is observed that the order passed by the DA in its 3rd paragraph has recorded as follows:
Since he was disqualified to appear in the final examination due to short of attendance, he was re-batched vide this office order No.12201-216/ Exam.Cell/PTC dated 9.9.09 with the directions to undergo his basic training i.e. Indoor/Outdoor with next batch of Prob. Sub. Insprs (batch No.34) of Delhi Police. Accordingly, he was directed vide this office memo.No.3854/Trg.Br.(D-II)/PTC dated 22.10.2009 to join this Institution for his basic training with batch No.34 of Delhi Police, at-once but he didnt join the training and is running absent willfully & unauthorisedly till date. (Emphasis supplied) Subsequently in the rest of the order the absence of the applicant beyond the period mentioned in the charge-sheet has not even been mentioned. The paragraph in which the penalty has been imposed, reads:
Therefore, I, A.K. Singh, Addl. Commissioner of Police/Principal, Police Training College, Jharoda Kalan, New Delhi hereby remove Prob. Sub. Inspr. Ram Niwas Meena, No.D-4126 from the service of Delhi Police with immediate effect. His absence period for a period of 29 days, 9 hours & 30 minutes on one occasion and again for a period of 8 months, 1 day, 21 hours & 30 minutes on second occasion is decided as period Not spent on duty and the same is not regularized in any manner.
7. In this paragraph also the DA has only referred to the period of absence, which was enquired into and not the absence of the applicant beyond that period. We, therefore, do not find any force in the contention of the learned counsel for the applicant that a reference to the fact of absence of the applicant till the date of passing the order by the DA would vitiate the entire order.
8. The third ground raised by the learned counsel for the applicant is that the applicant in his representation to the AA has raised the issue of quantum of punishment imposed on him to be excessive compared to the lapse on his part. A plain reading of the appeal submitted by the applicant, which is undated but annexed as Annexure A-7 to the OA shows that it does not specifically raises the issue of quantum of punishment. The prayer is limited to his restoration in service as SI in Delhi Police. The order of the AA, therefore, cannot be faulted on the ground of not having addressed the plea raised in the appeal submitted by the applicant.
9. With regard to alleged failure on the part of the DA or inquiring authority (IA) to refer the applicant for a second medical opinion in case the medical certificates submitted by him were doubtful, the learned counsel has relied on the judgments of this Tribunal in OA-2388/2003 Sohan Lal v. Union of India and Ors., [2006 (2) ATJ88] and OA-2384/2005 Ex. Constable Rajender Kumar v. Govt. of NCTD & Others decided on 05.04.2007. In OA-2388/2003 the applicant was working in KVS as a group D employee on account of being critically ill, as certified by the Government hospital, information of which had not been communicated to the applicant, had not reported for duty from 08.09.2001. The applicant therein responded on 24.12.2001 by stating that he was unwell and annexed copy of the medical and fitness certificate. The competent authority, however, observed two registered letters issued on 21.9.2001 and 25.10.2001 sent to the applicant came back undelivered with the remarks that house was found locked, his medical certificates were not considered as reliable. It was in this context that this Tribunal came to the conclusion that as the applicant had competed 16 years of service and there was no history of punishment and the period of absence had already been regularized, the respondents erred in rejecting the medical certificates without any proof of that being fictitious, fraud or procured to make a pretext of illness, the competent authority in its discretion cannot hold such a view without subjecting the person to a second medical examination, as non-expert the competent authority cannot decide the reliability of genuineness of the certificate. A similar view was taken by this Tribunal in OA-2384/2005 (supra). The facts in the present OA are different from those in the aforesaid cases. The applicant in this case was a fresh appointee in Delhi Police on the rank of Sub Inspector. The first absence without intimation for about 29 days had already been considered leniently and the applicant was allowed to resume training but the applicant left the training again without prior intimation and without any subsequent intimation for the next more than 08 months. The matter relating to the absence of a probationary Sub Inspector during training is to be dealt with under Standing Order no.291/2008 of Delhi Police which contains the following provisions:
11. CAUTION In order to eliminate unsuitable trainees at the stage of training itself, any one of the following grounds shall be sufficient for initiating of disciplinary action and or termination of service by the competent authority:-
(i) More than 14 days continuous unauthorized absence from the daily outdoor/indoor programme.
10. The order of the DA does not make the observation of the IO regarding reliability of the medical certificate as the ground for imposing punishment. The order has been passed under Standing Order no.291/2008 [paragraph 11 (i)] of Delhi Police as mentioned in para-4 of the order of DA dated 13.01.2011. The judgment in the aforesaid cases, therefore, would not be relevant in this case.
11. The learned counsel has also referred to this Tribunal order in OA-1748/2011 (supra) where relying on the judgment of the Honble Apex Court in Union of India and another v. G. Ganayutham (Dead) by LRs, AIR 1997 SC 3387 and similar pronouncements in some other cases. This Tribunal had considered it to be a fit case for interfering in the quantum of punishment imposed by the respondents. Again in OA-1748/2011 (supra) the applicant was a Head Constable in Delhi Police who had rendered almost 35 years of service was imposed the punishment of forfeiture of one year approved service permanently and the suspension period was decided as period not spent on duty. This Tribunal had applied the principle of proportionality and remitted the matter back to the AA to decide the appeal afresh in the light of the judgment in G. Ganayutham (supra). We are of the considered view that the applicant in the present case within few weeks of starting the career as a Probationary Sub Inspector, being familiar with the Government rules and regulations with regard to grant of leave, station leave permission etc., chose to proceed on leave not once but twice without any intimation. Even after being treated leniently on the first occasion, decided to remain absent for more than 08 months subsequently. In this background the applicant cannot claim the same treatment as an employee who has served in the department without any blemish for long period and claim the benefit of proportionality. The police being a uniformed force has to be more careful with regard to the candidates who join the force and observe their conduct during training and probationary period with regard to discipline and conduct to assess suitability to the police organization. In this case the competent authorities have come to certain conclusion that is based on the evidence, after following the laid down procedure and under the provisions of the Standing Order and disciplinary rules. We do not find any reason for interfering in the quantum of punishment imposed by the respondents.
12. Taking into account the facts on record and the aforesaid discussion, we do not find merit in the prayer of the applicant and the OA is accordingly dismissed. No costs.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) San.