Central Administrative Tribunal - Delhi
Hc Ramesh Kumar vs Union Of India on 15 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 2470 of 2006
New Delhi this the 15th day of February, 2011
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
HC Ramesh Kumar
(513/SD, PIS No.28800438),
S/o Shri Chattar Singh,
R/o Vill.Garhi (Sampla),
PO Sampla, Distt. Rohtak,
Haryana
Group C, Aged-47 yrs. Applicant
(By Advocate: Shri Sourabh Ahuja)
VERSUS
Union of India,
through Secretary,
Ministry of Home Affairs,
North Block, New Delhi
2. Commissioner of Police,
Police Headquarters,
I.P.Estate, MSO Building,
New Delhi
3. Deputy Commissioner of Police,
South District, R.K. Puram,
New Delhi
4. Joint Commissioner of Police,
Southern Range, Police Head Quarters,
IP Estate, MSO Building, New Delhi.
Deputy Commissioner of Police,
6th Batallion, DAP, Police Head Quarters,
IP Estate, MSO Building, New Delhi.
Respondents
(By Advocate: Ms. Renu George)
O R D E R
Dr. Dharam Paul Sharma, Member (J) Feeling aggrieved of his removal from service on account of his unauthorized absence, the applicant has filed this application challenging the Order dated 05.04.2004 initiating departmental enquiry against him as at Annexure A-1; findings of the Inquiry Officer dated 23.04.2005 as at Annexure A-2; Order of the disciplinary authority dated 24.12.2005 awarding penalty of removal from service to the applicant as at Annexure A-3 and the appellate authoritys Order dated 28.06.2006 rejecting his appeal against the order of the disciplinary authority as at Annexure A-4.
2. In so far as challenge to the Order dated 05.04.2004 as at Annexure A-1 whereby the departmental enquiry was initiated against the applicant is concerned, it no longer survives for our consideration as it has already been decided by the Order of the five-Member Full Bench of this Tribunal on 25.2.2010 in the present OA.
3. The applicant, a Head Constable in Delhi Police was proceeded against in the departmental enquiry on the following summary of allegations:-
SUMMARY OF ALLEGATION It is alleged that on 24.5.2002 Head Const. (Exe.) Ramesh Kumar No.5133/SD (PS NO.28800438) (here-in-after called the Const.) while posted at P.S. Ambedkar Nagar, was detailed for duty form 4 PM to 12 night but he did not report for duty. The Const. joined his duty only on 25/5/02 after absenting himself willfully, unauthorisedly and on his own without any intimation for a period of 18 hours, 35 minutes.
On 12.6.2002, the Head Const. was supposed to attend the SHOs briefing in the morning but the HC did not attend nor sent any information. Thus, the HC was marked absent w.e.f. 12/6/02 vide DD No.12-B. Two absentee notices vide No.13828 and 30199-31000 dated 3/7/02 and 4/10/2002 respectively were sent to him at his native village through Supdt. of Police, Rohatak, Haryana with the directions to resume his duty immediately. He resumed his duty only on 18/10/02 vide DD No. 27-B after absenting himself willfully, unauthorizedly and on his own and without any intimation for a period of 4 months, 17 days, 3 hr and 50 minutes.
On 18.10.02, the Head Const. was detailed for night duty. But he did not report for duty on scheduled time. Thus, the Head Const. was marked absent vide DD NO. 76-B, dated 18/10.02 and resumed his duty on 19/10/02 vide DD NO.13-B after absenting himself willfully, unauthorized a nd on his own for a period of 11 hours and 35 minutes.
In the meantime, the Head Const. was transferred to 6th Bn, DAP vide PHQs order No.24533-70/P, Branch dated 10/09/02 and he was relieved vide DD No.37-B, dt. 6/11/02, P.S. Ambedkar Nagar with the directions to report at 6th Bn, DAP. But the Const. did not report there despite directions. Thus, he was marked absent w.e.f. 6/11/02 vide DD No.37-B. Two absentee notices vide No.9402-06 and 12381-85/SIP/SD dated 7/5/03 and 14/6/03 respectively were sent to him at his native village through Supdt. of Police, Rohtak, Haryana with the directions to report to his duty immediately but he did not do so. The absentee notice dated 7.5.2003 returned undelivered from postal agency with a mention that the addressee was not found despite six visits, hence returned. Again, absentee notice dated 14.6.2003 also returned back from postal agency with a mention that the addressee was not found despite four visits, hence returned. Const. Dinesh Kumar, No.3345/SD was deputed for conducting enquiry about the whereabouts of Head Const. Ramesh Kumar, No.523/SD at his native village Garhi Sampla, Distt. Rohtak who submitted his report dated 27.9.2003 which revealed that your father Sh. Chhattar Singh, the father of the Const. stated that his son Ram Kumar is proceedings to Delhi for duty and returned home at night but his father did not know what work is being done by his son. During enquiry, Sh. Maha Singh, the Sarpanch, Gram Panchayat, Garhi Sampla (Rohtak) also confirmed in writing on 25.9.2003 that Ramesh Kumar S/o sh. Chhattar Singh of his village daily left the village in the morning and returns in the evening. As such, the constable is continuously running absent w.e.f. 6.11.2002 from his duty willfully, unauthorisedly, on his own and too without any intimation in violation of CCS (Leave) Rules, 1972 and SO No.111.
The service record of the Head Const. also shows him an habitual absentee as he was previously absented from duty willfully unauthorizedly and on your own at 21 occasions.
The above act on the part of you HC Ramesh Kumar No.513/SD (PIS Nos. 28800438) amount to gross misconduct, negligence, carelessness and dereliction on your duty and habitual absentee which renders you liable for punishment under the provisions Delhi Police (Punishment and Appeal Rule 1980)
4. When the applicant did not appear in the inquiry, the Inquiry Officer decided to proceed against him ex parte after due process and examined seven witnesses whereupon he framed the charge against the applicant on the lines of summary of allegations referred to above. The charge was served on the applicant on 25.5.2004 by deputing Special Police Messenger. The applicant did not plead guilty to the charge. He was, therefore, directed to produce defence witness and any other witness in defence. The applicant neither produced any witness nor submitted any defence statement in the inquiry.
5. On a careful consideration of the evidence that has came on record during the enquiry, the Inquiry Officer returned the findings that the charge framed against the applicant had been fully proved beyond doubt.
6. The disciplinary authority agreed with the findings of the Inquiry Officer whereupon a copy of the Inquiry report was served upon the applicant at his native place by deputing a Special Messenger to make him enable to file representation. The applicant received a copy of the inquiry report on 24.7.2005 against his proper receipt but did not submit any representation in pursuance thereof. The disciplinary authority issued reminders but to no avail. The disciplinary authority called him to appear in OA on 25.11.2005 by deputing Special Messenger to his native village for this purpose, especially having regard to the fact that the applicant has not made any representation. The applicant, however, did not appear in the OR. Yet another opportunity was given to the applicant to make his representation and appear in OR on 7.12.2005 by sending notice by a Special Messenger Constable Satish Kumar who served it on the wife of applicant Ramesh Kumar and apprised her of the contents of the notice. However, the applicant neither made any representation nor appeared in OR on 7.12.2005. Thereupon the disciplinary authority proceeded to pass the order of penalty on 24.12.2005 after considering the evidence that has come on record during the enquiry against the applicant as well as the conduct of the applicant and the effect of the absenteeism of applicant during the departmental proceedings and order his removal from service with immediate effect. In the said order, the applicant was also apprised of his right to file an appeal against the said order to the Joint Commissioner of Police, Northern Range within 30 days of receipt of said order, if so desire. The applicant made an appeal on 11.02.2006. a copy of which is as at Annexure A-7. The appeal was, however, rejected by the appellate authority vide its Order dated 28.06.2006. Feeling aggrieved, the applicant has filed this application seeking setting aside of the impugned orders relating to his removal from service with all consequential benefits on a number of grounds as contained in para 5 of the application.
7. The respondents have filed their reply in which they have controverted the contentions of the applicant. The applicant was under the control of DCP/South Distt. and, therefore, the enquiry has rightly been initiated against him. It is denied that the applicant has ever informed of his illness on telephone. The plea of illness is not correct. There are better medical facilities in Delhi and all reasonable opportunities were given to the applicant to improve himself but he did not avail them. He neither pursued the enquiry nor put appearance. The previous absent records have been taken into consideration as the applicant was a habitual absentee and incorrigible type of person and this has specifically been included in the charge sheet.
8. The applicant has filed his rejoinder wherein he has reiterated his averments made in the application. He has further mentioned certain Court cases in support of his plea that his absence was neither willful nor intentional.
9. At the hearing, the learned counsel for the applicant vehemently contended that the applicant was suffering from anxiety neurosis as a result of which he was not aware of surroundings. The applicant upon his transfer was sanctioned 5 days casual leave in addition to 9 days which period too has taken as unauthorized absence. However, he suddenly fell ill and, therefore, could not attend his duty. The applicant had papers of his medical treatment from Government Hospital to the appellate authority but were not taken into consideration. He has referred to in this regard the case of Sh. Sohan Lal Vs. Union of India and Ors. (2006(2)ATJ 88) wherein it has been held 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. In cases of doubt, the competent authority can verify the genuineness of the medical certificate by sending the concerned person for medical examination before a Civil Surgeon for second opinion and can comment on genuineness of medical certificate only thereafter.
10. The learned counsel further submitted that the respondents have taken into consideration the absences of the applicant subsequent to the issue of the charge sheet. Thus, taking into consideration such further absence which was not part of the charge levelled against him has vitiated the impugned order of penalty. In this connection, the applicant has referred to the case of Ex. Constable Raja Ram Vs. Union of India & Ors. (OA No.1048/1999 decided on 27.11.2000 by this Tribunal).
11. Another case referred to and relied upon in this regard is Pravin Madhusudan Mangle Vs. Union of India 2003(3) ATJ 112) wherein the Inquiry Officer found the applicant guilty of charge of willful absence from 9.3.1996 to 31.12.1996. While the disciplinary authority considered absence period beyond 31.12.1996 which, in the opinion of this Tribunal, has vitiated the impugned action of the disciplinary authority by taking into extraneous matters without putting it to the applicant even in an exparte proceedings. It has been further held that the absence from duty on account of genuine illness cannot be treated as willful and would not amount to any misconduct.
12. Another case relied upon by the applicants counsel is Ex.Constable Harish Chander Vs. Commissioner of Police, (W.P.(C ) No.11/2004 decided by the Honble High Court on 5.7.2010) wherein it has been held that late coming cannot be viewed as unauthorized absence from duty.
13. In reply, the learned counsel for the respondents submitted that the medical papers submitted by the applicant show that he was under medical treatment as outdoor patient and neither any rest was advised nor the applicant had made any application for leave. All the documents have been submitted after the enquiry was decided exparte against him. He did not submit the medical papers earlier. If he had gone to the hospital for taking the treatment as outdoor patient, there was no reason why he could not go to the office to attend the duty. Even he had been advised rest for medial reason, he should, and could, have applied to medical leave. The applicant remained absent after being relieved on transfer on 6.11.2002. He never joined the office ever since then. This is in addition to specific cases of past absence as contained in the charge sheet. The charge sheet clearly stated that the service record of the applicant shows him habitual absentee as he remained absent in the past on 21 occasions. It cannot, therefore, be said that the past cases including the nature of the applicant as a habitual absentee were not the part of the charge. The department had deputed a Special Officer to ensure service of the documents and other correspondence from time to time. The applicant had received the notices of the inquiry but he never appeared in the enquiry and did not inform the Inquiry Officer of the reason of his inability to attend the enquiry. Constable Dinesh Kumar Special Messenger submitted his report, a relied upon document, a copy of which was served upon him, reporting the information furnished by his father and Sarpanch of the village from which it was clear that the applicant was not available at home and even the father of the applicant was not aware of the illness. This is surprising that even his father was not aware of his illness. In any case, Constable Dinesh Kumar had no reason to depose against the applicant.
14. We have given our careful consideration to the respective submissions made by both the parties and have also carefully perused the records of the case. The learned counsel for the respondents submitted the departmental enquiry file for our perusal.
15. The grounds taken by the applicant in support of his claim can be classified into three categories; namely, lack of competency of the authority initiating the departmental enquiry against the applicant; taking into consideration further period of absence that was not formed part of original charge; and absence being not willful but necessitated on account of illness/medical treatment which was not given due consideration by the authorities concerned. It has thus been contended that the applicant was transferred from Ambedkar Nagar to 6th Bn DAP vide PHQ No.2453370/P Branch dated 10.9.2002 and was relieved vide DD No.37-B dated 6.11.2002 P.S.Ambedkar Nagar to join 6th Bn. DAP. Thus, 05.04.2004 when the enquiry against the applicant was ordered by the Addl. Deputy Commissioner of Police, South District, New Delhi , the applicant was not working under him, and, therefore, the order of initiating enquiry against the applicant was not within his competence in view of the provisions of Rule 14(4) of the Delhi Police (P & A) Rules,1980 which provided that the disciplinary action be initiated by the competent authority under whose disciplinary control the police officer concerned was working at the time it was decided to initiate the disciplinary action.
16. It has further been submitted that the applicant was suffering from anxiety neurosis and was not in proper state of mind. Any document served upon him in such a state was not proper. Thus, the Inquiry Officer arbitrarily proceeded exparte against the applicant. Though he had informed the department about his condition yet the departmental enquiry was initiated against him. The report of Constable Dinesh Kumar was incorrect as the applicants father had never made the statement as contained in the said report. Furthermore, the Sarpanch whose statement had been referred to in the said report was not having good relations with the applicants family and, therefore, he deposed against the applicant out of malice. The disciplinary authority took into consideration the extraneous matter which vitiated the order. The appellate authority did not take into consideration the medical certificates submitted by the applicant and relied upon the statement of Sarpanch which was not provided to the applicant and relied upon the wrong fact that the father of the applicant had made statement to Constable Dinesh Kumar that the applicant was going daily to attend his duty in Delhi in the morning and returned home in the night. The substance of the fact is that the father of the applicant had not made any such statement to anyone. Lastly, the penalty is very harsh and disproportionate and not commensurate with the misconduct.
17. Since the issue of competence of the authority against the applicant has already been settled by the Five Members Full Bench vide Order 25.02.2010 of this Tribunal, this issue no longer survives for our consideration.
18. In so far as the applicants absence being unauthorized is concerned, the admitted position is that the applicant has not applied for any medical leave supported by any medical certificate advising rest on medical ground. The applicant was shown unauthorizedly absent on four different occasions in the charge sheet i.e. 24.05.2002, 12.6.2002, 18.10.2002 and 6.11.2002 till the date of issue of charge sheet on 25.5.2004. It was also stated in the charge sheet that he was a habitual absentee and remained absent from duty willfully and unauthorisedly in the past on 21 occasions. Thus, it cannot be said that the past cases were taken into consideration without being formed a part of the chargesheet. Also, It can also not be said that the respondents have taken into consideration the absence which was subsequent to issue of charge sheet. As a matter of fact, it is not a case where the applicant joined his duty and then remained absent willfully and unauthorisedly which has been taken into consideration by the respondents. The cases relied upon by the applicant are distinguishable on facts. The narration of the fact that the applicant never joined duties itself would not amount to have taken into consideration the absence in future. Further regarding absence, an argument has been advanced on the report of Constable Dinesh Kumar so as to say that the applicants father never made the statement as stated in the report. As regards the Sarpanch, Gram Panchyat, he deposed against the applicant because he was not having good relation with his family. Such a bald explanation without being supported by any evidence cannot be taken into consideration on its face value. Furthermore, the applicant could have produced his father as witness to controvert the correctness of said report. Besides, no reason has been brought forward to show as to why Constable Dinesh Kumar would file false report against the applicant. He could have cross-examined Constable Dinesh Kumar to challenge the veracity of his report. It cannot be said that the appellate authority has not given any consideration to the medical certificate regarding illness of the applicant. The appellate authority cannot be said to have erred in rejecting the applicants contention in this regard. The fact remains that the report of Constable Dinesh Kumar remained uncontroverted in the enquiry. The applicant had not submitted any certificate given by the competent Medical Authority advising rest. What has been submitted by him in the copies OPD Card indicating that he is undergoing treatment. There is nothing therein which amounts to advising rest on medical grounds. Being under medical treatment is different from medical advice for rest. In late case, the person may apply himself or through his family members for leave. This has not been done in the present case. The cases relied on by the applicant are distinguishable on facts. If one remains absent without applying for any kind of leave, it may amount to desertion for which he may be dismissed from service which would not be viewed as excessive in such a case.
19. The courts have occasion to deal with the cases of overstay by persons belonging to disciplined forces. In State of UP Vs. Ashok Kumar Singh (1996) 1 SCC 302), it was held that an act of indiscipline by a person who happed to be a police personnel needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. In Union of India and others Vs. Ghulam Mohd. Bhat (2005)13 SCC 22, the punishment of removal from service was upheld in view of the absence from duty for more than 300 days by a Constable without sanctioned leave and without justifiable reason.
20. It would be expedient to refer in this regard the following observations made by the Honble Supreme Court in Union of India and others Vs. Datta Linga Toshatwad ( (2005) 13 SCC 709:
One cannot ignore the large number of Cases Which come to this Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. We would not have taken a serious view of the matter had it not been a case of a constable belonging to CRPF remaining absent for an indefinite period. The Court further observed that Members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter cannot be said to be one merely overstaying his leave. He must be treated as a deserter. ..we are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be described as disproportionate to misconduct alleged.
21. In the facts and circumstances of the case and for the reasons stated above, this application is dismissed being devoid of substance. The conduct of the applicant deserves imposition of an exemplary cost. However, having regard to the fact that he has already been removed from service for his misconduct and in the circumstances of the case, we deem it proper to impose nominal cost on the applicant quantified at Rs.5,000/- Which the respondents may recover from the applicant as per the due process.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
/usha/