Central Administrative Tribunal - Delhi
Dharambir Singh vs Commissioner Of Police on 2 May, 2013
Central Administrative Tribunal Principal Bench OA No. 3836/2012 New Delhi this the 2nd day of May, 2013 Honble Sh. G. George Paracken, Member (J) Honble Sh. Shekhar Agarwal, Member (A) Dharambir Singh (Ex-Constable) R/o Village Bherapur, P.O. Ratol, District Baghpat, U.P. .Applicant By Advocate: Shri A.N. Singh. Versus 1. Commissioner of Police, Police Headquarters, New Delhi-110002. 2. Jt. Commissioner of Police Security (P.M.), New Delhi. 3. Dy. Commissioner of Police, HQ Security, Main Security Line, Vinay Marg, New Delhi. ..Respondents By Advocate: Mrs. Raschmi Chopra. ORDER (ORAL) Sh. G. George Paracken, Member (J):
This Original Application has been filed by the Applicant aggrieved by the order of the Disciplinary Authority dated 10.02.2010 dismissing him from service and the order of the Appellate Authority dated 10.05.2011 rejecting his appeal against the aforesaid order. His main contention is that the departmental enquiry conducted in his case was patently illegal and hence it is a nullity in the eyes of law.
2. The brief background of the case is that Applicant was appointed as Constable on 08.07.1991. On 24.04.2008, a departmental enquiry was ordered against him on the allegation that he, while posted in North East District and Security Unit, remained absent willfully and unauthorisedly from Government duty without any intimation or taking prior permission of the competent authority. According to the Summary of Allegations issued to him on 21.6.2008 his unauthorized absence was for the following occasions:-
Sl.No. DD No. & Date of Absent DD No. & Date of Arrival Absent period Days Hrs mt.
1. 21-8-2-07 Distt Line NE 6-25-2-07 Distt. Line N.E. 16-23-
2. 7-22-3-07 Distt. Line NE 9-25-3-07 Distt. Line NE 03-07-15
3. 32-30-4-07 Distt. Line NE 11-3-6-07 Distt. Line NE 33-22-50
4. 12-16-6-07 Distt. Line NE 17-22-7-07 Distt. Line NE 36-08=00
5. 28-16-8-07 Distt. Line NE 14-13-9-07 Distt Line NE 28-06-00
6. 25-6-10-07 IX BN DAP PPL Still running absent The said Summary of Allegations also states that 5 absentee notices were sent to him at his native place, i.e., Village and P.O. Khaliya P.S. Ahmedgarh, District Bulandshahar (U.P) through SSP Bulandshahar (UP) with direction to resume duty at once or in case of his illness to report to CMO/Civil Hospital, District Bulandshahar for medical examination failing which departmental action would be taken against him. He neither resumed his duty nor complied with the directions given in the absentee notice. The details of the absentee notices and the receipts are as under:-
Sl.No. Absentee Notice No. Date Received by
1. 3433-36/SIP-NE 22.2.07
2. 7683-86/SIP (Ac) N.E. 16.5.07
3. 4794-96/SIP-IX-BN DAP 2.11.07 Himself on 20.11.07
4. 88-91-ASIP/X Bn DAP 7.1.08 Himself on 9.2.08
5. 635-38/ASIP/IX Bn. DAP 18.2.08 Himself on 21.2.08 The Disciplinary Authority has also observed in the Summary of Allegations that he is a habitual absentee and he absented himself from duty on 60 different occasions in the past. Though they have been regularized by awarding him warning PD/ED etc. still he has not mend his ways. The Disciplinary Authority has, therefore, considered his aforesaid action as gross misconduct and unbecoming act of a member of a disciplined force which renders him liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980. On completion of the departmental enquiry, the Disciplinary Authority has forwarded a copy of the enquiry report to the Applicant vide its letter dated 03.12.2008. According to the said letter, the Enquiry Officer has completed its enquiry and concluded that the charge leveled against him is fully substantiated. The evaluation of evidence adduced during the enquiry as recorded by the Enquiry Officer is reproduced as under:-
On the basis of record prepared during the course of departmental enquiry it is fully established that the delinquent Const. Dharambir has been habitual absentee. He has been absented himself from Govt. duty on 60 different occasions in the past from 25-02-1992 to 13-02-2006. How ever his all the absented period has been regularized by awarded him warning/PD/ED etc. but still he is not mending his ways. The delinquent Ct. has been absented himself from Govt. duty for Six times on different occasions and the delinquent Cost. Has been running absent from Govt. duty from 06-10-2007 continuously, unauthorised, without prior permission from the competent authority and thus his total period of absent from his duty from 06-10-2007 is more than 533 days to till date. Five absentee notices have been issued against the delinquent but he did not bother to report for duty. It is essential to prove the trend of the delinquent Cost. As to how much, he is devoted and dedicated to the oath which he took at the time of his getting into the discipline force and he is taking the department for a ride. If one can talk about todays communication scenario, a person can communicate in any part of the world or convey information (verbal/written) with in a span of few minutes, through various channels of technology today exists, but a discipline force man having 17 years of service career was unable to inform to department at any moment. It throws quite a bad impression on the other Police personnel too. Original Rojnamchas alongwith D.D entries of const. Dharambir 4535/sec in which D.D. entries have shown the absent and arrival from absent period as under:-
1. The delinquent had been marked absent vide D.D NO. 25B dated 6/10/2007 and resumed his duty vide D.D. NO. 19B dated 10/6/2008 and thus he remained absent unauthorizedly for a period of 247 days-20 hours and 40 minutes which were marked D.D. entries as Ex PW-4/1 and PW-4/2.
2. The delinquent had been marked vide D.D. NO. dated 21/6/2008 at 12:50 pm, which is marked as a PW 4/3 and since then the delinquent const has been running absent unauthorizedly without intimation and permission.
With the examination of PW-4 the prosecution evidence was closed and charge as in the Summary of allegation and reproduced here in anti in this report was prepared and got approved by the disciplinary authority on 3/10/2008. The charge was served upon cost Dharambir 4535/S on 10/10/2008 with the directions to submit the list of PWs with in week and his defence statement with in weeks time. The contents of charge were explained to the delinquent in simple Hindi which the delinquent admitted to have understood but pleaded not guilty. The delinquent has not submitted the PWs and defence statements after asking him to produce the same earliest, but in the end he denied giving any PWs and his defence statements. Though delinquent cost has submitted seven medical certificate and fitness certificate from the same and one Dr. Sh. R.L. Bansal B.A.M.S. whose clinic is in the city, Ghaziabad, Dr. R.L. Bansal has stated that delinquent const has been suffering from hypertension, typhoid fever and viral fever. The Dr. has also given fitness certificate to the delinquent const, despite that he has not resumed his duty. The illness is not so serious as the delinquent cost. Is not in a position to resume his duty or inform the department.
Conclusion:-
In the light of evaluation and objective analysis and assessment of evidence on record prepared during the course of proceedings only and discussed here in ante, the charge leveled against Cost. Dharambir 4535/Sec. is fully substantiated.
3. The Applicant did not make any representation to the aforesaid findings. Therefore, after considering the enquiry report and other material documents on record, the disciplinary authority, vide its order dated 10.02.2010, dismissed him from service with a stipulation that he can file an appeal against the same within 30 days from the date of receipt of the said order. The relevant part of the said order reads as under:-
Tentatively agreeing with the findings of the E.O., a copy of the findings of the E.O. was sent to the defaulter vide U.O, letter NO.11753/HAP/Sec.(P-I/Bn) dated 3.12.2008 at his residence through RI/E.Block/Security which was received by his father Sh. Babu Ram on 26.12.2008. While receiving the copy of findings his father Sh. Babu Ram informed Ct. Ravinder Singh, No. 961/Sec. who had visited his house for the said purpose that Ct. Dharambir Singh, No.10616/DAP, Now 4535/Sec. is not available in the house, as and when he comes to house he reports that he is coming from duty. As per contents of U.O No.11753/HAP/Sec. (P-I/Bn/ Bn.) dated 3.12.08, const. Dharambir Singh No. 4535/Sec. should have submitted his representation within 15 days from the date of its receipt. If he so desired, but he did not care for the said directions.
Keeping in view the requirement of natural justice, he was called to appear in Orderly Room on 16.1.2009 at 11.00 AM vide UO No. 281/HAP/Sec. (P-I/Bn.) dated 13.1.2009, but the RI/E-Block, reported that Ct. Dharambir No.10616/DAP (4535/Sec.) is running absent vide D.D. No. 18-B dated 15.1.2009. He was given another opportunity by sending U.O No.553/HAP/Sec. (P-I/Bn) dated 21.1.2009 and 910/HAP/Sec. (P-I/Bn.) dated 14.2.2009 to submit his representation but again the same report of his being absent since 15.1.09 was received from RI/E-Block.
In order to ascertain if the Constable had intimated regarding his absence since 15.1.09 in this office or otherwise a U.O. No 1329/HAP/Sec. (P-I/Bn.) dated 16.2009 was sent to SIP/Sec. The SIP/Sec. on this office reminder No.4015/HAO/Sec. (P-I Bn.) dated 06.04.2009 intimated that the office had received no such information from the Constable.
The disciplinary authority again decided to call the Constable in O.R. along with his representation on 30.4.2009. It was also mentioned in U.O. No.6208/HAP/Sec. (P-I/Bn. Dated 24.4.2009 that in case he fails to appear in the O.R. and to submit his representation without any valid reason to be intimated in this office well in advance, the DE under consideration will be decided ex-parte. The said U.O. letter was got served upon the defaulter Constable on 26.04.2009 through Constable Ravinder Singh No. 961/Sec. of E-Block but this time too the Constable neither set his representation nor appeared in the O.R. The Disciplinary Authority further decided not to decide the DE Ex-parte and ordered RI/R-Block/Sec. to depute a team of police officials who will bring the defaulter to the office so that DE could be decided. Accordingly U.O. letter No.10434/HAP/Sec. (P-I/Bn.) dated 3.8.09 was issued. The R1/E/-Block deputed a team under the supervision of ASI Ravti Prasad No. 2746/Sec. The team reached at the house of Ct. Dharambir Singh, in his village but he was not found present and reported to have gone to his relatives. However, his family members assured the team and also gave in writing that they will produce the Constable on 4.9.09, but the Constable did not appear.
The Disciplinary authority again ordered Let the team try again. Accordingly U.O.No.13144/HAP/Sec. (P-I Bn) dated 16.9.09 was sent to RI/E-Block. In compliance of the said order, the team was able to produce him before the DCP/Security vide D.D. No.57/A dated 25.9.09.
On 3.11.2009 he attended the Punishment Branch but after a while he slipped away. Thereafter following U.O. Letters were issued to him to appear in the O.R. on the dates as mentioned against each but he is reported to be absent vide D.D. No. 15 dated 26.11.2009. Pt. House read with D.D. No.27 dated 30.11.2009. Main Lines/Security:-
Sl.No. No. and date of issue of U.O. Date of orderly Room
1. 14764/HAP/Sec(P-I/Bn) dated 4.11.09 10.11.09
2. 15286/HAP/Sec(P-I/Bn) dated 16.11.09 19.11.09
3. 15652/HAP/Sec(P-I/Bn) dated 25.11.09 30.11.09
4. 16998/HAP/Sec(P-I/Bn) dated 11.12.09 16.12.09
5. 17268/HAP/Sec(P-I/Bn) dated 17.12.09 21.12.09
6. 230/HAP/Sec(P-I/Bn) dated 7.1.2010 14.01.10 The efforts made on behalf of Disciplinary Authority as shown above indicate that the defaulter Constable is avoiding to submit his representation and to appear in O.R. Evidently he has nothing to say in his defence.
I have perused the entire D.E. file alongwith the finding of the E.O. During the course of D.E. proceedings the defaulter Ct. neither produced any DW nor submitted any defence statement as required under Rule 16(VII) of Delhi Police (Punishment & Appeal) Rules, 1980. All the PWs have proved the allegations leveled against the Constable. Hence I find no reason to disagree with the finding of the Enquiry Officer.
Keeping in view the all facts & circumstances I tend to decide the D.E. Exparte. The defaulter constable is a habitual absentee and not mending his ways. Willful absence in a disciplined force is not tolerable at all as it vitiate the discipline. Therefore, Ct. Dharambir Singh, No. 10616/DAP (Now 4535/Sec.) is hereby dismissed from the service with Immediate effect. His above absence period is decided as not spent on duty which is not being regularized in any manner.
4. According to the Applicant, on receipt of the aforesaid order of the Disciplinary Authority he made a request on 25.02.2010 to permit him to have the copies of the relevant records for the purpose of filing an appeal within time. Since he has not been given records of the departmental enquiry proceedings pursuant to his application dated 25.02.2010, he made another request on 28.10.2010. Thereafter, he obtained copies of the proceedings before the Enquiry Officer on 29.08.2009, 18.09.2008 and 30.09.2008 under the Right to Information Act, 2005. According to him, even though he has not been attending those proceedings, his signatures have been shown on the record of those proceedings. Finally, he filed the appeal on 05.04.2011. According to the said appeal, due to ill health and financial hardship he was absent from duty for about 8 months and 20 days. He has also pointed out that in the departmental proceedings has instituted enquiry against him, the letters issued to him for attending the enquiry never reached him because they were sent at wrong address. In this regard he has pointed out that in the summary of allegation his native address was shown as Village & P.O. Khaiaya PS Ahmedgarh, UP whereas his actual address was Village Bhanda Pur, PO-Ratol, P.S. Chandi Nagar District Meerut (UP). According to the Applicant, as a result, he did not have the opportunity to attend the departmental proceedings and Enquiry Officer has held the same ex-parte. However, the Respondents have shown it as an enquiry with his participation by putting his signature and all those daily order sheets. His further plea in the appeal was that he had a family of 7 members, i.e., self, wife, 2 daughters and 3 sons. The daughter is the eldest and she is of a marriageable age. He is a very poor person living under great hardship and had no means to support his family. He is the only bread winner of the family and due to his termination, no other means left with the family to live and sustain. Further, according to him, before his termination he performed his assigned duties without any complaints. He has also submitted that he has served respondents-Delhi Police for 21 years and there was no short coming on his part. He has accordingly requested to revoke the order of termination from service.
5. The Appellate Authority rejected his appeal vide order dated 10.05.2011 observing that the Applicant was continuously absenting himself from duty from 11.07.2007 and has never joined duty thereafter. He has also observed that the Disciplinary Authority has called the Applicant in the Orderly Room on 30.04.2009 but he never turned up. Further, the Disciplinary Authority tried not to decide the departmental enquiry ex-parte and deputed a team of officials to bring him to the office so that the departmental enquiry could be decided. A team consisting of ASI Ravti Prasad reached the house of the Applicant in his village but he was not present there and it was reported that he has gone to his relatives. The family members assured the team that they will produce him on 04.09.2009 but again he did not appear. The Disciplinary Authority again ordered the team to try again and lastly he was produced before the DCP/Security on 25.09.2009. On 30.11.2009 he attended the Punishment Branch but slipped away. Though, thereafter several U.O. notes were sent to him to appear in the Orderly Room on the dates mentioned in them, yet he did not appear on any one of those dates. The details of those U.O. notes sent to him are as under:-
Sl.No. No. and date of issue of U.O. Date of orderly Room
1. 14764/HAP/Sec(P-I/Bn) dated 4.11.09 10.11.09
2. 15286/HAP/Sec(P-I/Bn) dated 16.11.09 19.11.09
3. 15652/HAP/Sec(P-I/Bn) dated 25.11.09 30.11.09
4. 16998/HAP/Sec(P-I/Bn) dated 11.12.09 16.12.09
5. 17268/HAP/Sec(P-I/Bn) dated 17.12.09 21.12.09
6. 230/HAP/Sec(P-I/Bn) dated 7.1.2010 14.01.10 Thus, the Applicant was avoiding to submit his representation and appear in the OR. Therefore, the Disciplinary Authority was forced to peruse the entire departmental enquiry file along with findings of the Enquiry Officer. The Appellate Authority has also observed in his order that the Enquiry Officer had to submit his report showing that the charge made against him has been proved considering the unrebutted submissions made by the Prosecution Witnesses since Applicant did not produce any witnesses or submitted any defence statement as required under Rule 16(vii) of Delhi Police (Punishment & Appeal) Rules, 1980 and the Disciplinary Authority had no reasons to disagree with the findings of the Enquiry Officer and imposed the punishment of dismissal upon the Applicant vide order dated 10.02.2010.
6. The Appellate Authority specifically considered the following submissions made by the Applicant-
(i) Due to ill health and financial hardship he remained absent for about 8 months and 20 days from duty.
(ii) The letters issued to him for attending the departmental enquiry could not reach him due to the fact that they were sent to the wrong address and hence he could not appear before the Enquiry Officer to explain his reason for absence.
(iii) He has a family of 7 members and his daughter is of the marriageable age. He is very poor and he has no means to support his family for their upkeep, education and survival and he is the only bread winner. He served Delhi Police for about 20 yeas and no shortcoming was noticed during that period.
After going through the aforesaid submissions and perusing the other relevant records available in the departmental enquiry proceedings file, the Appellate Authority has also observed that the appeal was filed after the prescribed limitation period. While his punishment was ordered on 10.02.2010 and it was served on 20.02.2010, he submitted his appeal only on 05.04.2011 whereas the limitation period for submission was 45 days. Considering all the above aspects, the Appellate Authority rejected his appeal.
7. The Applicant has challenged the aforesaid enquiry officers report, Disciplinary Authoritys order and Appellate Authoritys order in this OA on the ground of violation of Article 311 (2) of the Constitution of India which provides that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. He has also submitted that the enquiry was conducted in violation of 16(i) of Delhi Police (Punishment & Appeal) Rules, 1980 which provides as under:-
(i) A police officer accused of misconduct shall be required to appear before the disciplinary authority, or such Enquiry Officer as me be appointed by the disciplinary authority. The Enquiry Officer shall prepare a statement summarizing the misconduct alleged against the accused officer in such a manner as to give full notice to him of the circumstances in regard to which evidence is to be regarded. Lists of prosecution witnesses together with brief details of the evidence to be led by them and the documents to be relied upon for prosecution shall be attached to the summary of misconduct. A copy of the summary of misconduct and the lists of prosecution witnesses together with brief details of the evidence to be led by them and the documents to be relied upon for prosecution will be given to the defaulter free of charge. The contents of the summary and other documents shall be explained to him. He shall be required to submit to the enquiry officer a written report within 7 days indicating whether he admits the allegations and if not, whether he wants to produce defence evidence to refute the allegations against him.
If the accused police officer after receiving the summary of allegations, admits the misconduct alleged against him, the enquiry officer may proceed forth to frame charge, record the accused officers pleas and any statement he may wish to make and then pass a final order after observing the procedure laid down in Rule 15 (xii) below if it is within his power to do so. Alternatively the finding in duplicate shall be forwarded to the officer empowered to decide the case.
8. In support of his contentions, he relied upon the judgment of the Apex Court in the case of Surath Chandra Charaborty Vs. State of West Bengal 1970 (3) SCC 548 wherein it has been held as under:-
.. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.
9. Further, he has relied upon the judgment of the Apex Court in Mafatlals Narandas Barot Vs. J.D. Rathod, Divisional Controller, State Transport Mehsana and Another AIR 1966 SC 1364 wherein it has been held as under:-
.The appellant is entitled to a reasonable opportunity to show cause which includes an opportunity to deny his guilt and establish his innocence which he can do only when he knows what the charges levelled against him are and the allegations on which such charges are based. In our judgment, the appellant was entitled to an opportunity to show cause against the action proposed to be taken against him.
10. Further, according to the Applicant he has never been served with the copy of summary of allegations, list of Prosecution Witnesses, details of evidence which led and the documents relied upon. According to him, the summary of allegations made available to him much later, that too on his application under the Right to Information Act, 2005. He, therefore, argued that the enquiry held against him is null and void, therefore, the orders of the Disciplinary Authority and Appellate Authority should also be declared so. He has also submitted that the enquiry was vitiated as none of the relied upon documents were provided to him. In this regard he has relied upon the judgment of the Apex Court in Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589 wherein it has been held as under:-
5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same.
11. Further, he has relied upon the judgment of the Apex Court Committee of Management, Kishan Degree College Vs. Shambhu Saran Pandey and Others 1995 (1) SCC 404 wherein it has been held as under:-
It is settled law that after the charge-sheet with necessary particulars, the specific averments in respect of the charge shall be made. If the department or the management seeks to rely on any documents in proof of the charge, the principles of natural justice require that such copies of those documents need to be supplied to the delinquent. If the documents are voluminous and cannot be supplied to the delinquent, an opportunity has got to be given to him for inspection of the documents. It would be open to the delinquent to obtain appropriate extracts at his own expense. If that opportunity was not given, it would violate the principles of natural justice. At the enquiry, if the delinquent seeks to support his defence with reference to any of the documents in the custody of the management or the department, then the documents either may be summoned or copies thereof may be given at his request and cost of the delinquent. If he seeks to cross-examine the witnesses examined in proof of the charge he should be given the opportunity to cross-examine him. In case he wants to examine his witness or himself to rebut the charge, that opportunity should be given. In this case, at the earliest, the delinquent sought for inspection of the documents. It is now admitted in the affidavits filed in this court and in the letter written by the enquiry officer, that some of the documents were seized by the police after the murder of the Manager of the appellant-institution on 31/7/1980 for investigation. In that case the respondent was also one of the accused charged for the offences under Section 302 read with Section 120-B Indian Penal Code. It is now an admitted fact that in Sessions Trial No. 228 of 1981 dated 31/7/1986 he was convicted for the said offence and was sentenced to undergo imprisonment for life. It would appear that he filed an appeal in the High court and bail was granted to him.
12. Again he has relied upon Kashinath Dikshita Vs. India & Others AIR 1986 SC 2118 wherein it has been held as under:-
9 When a Government servant is facing a disciplinary proceedings, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner and no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him
13. He has also stated that the Appellate Authoritys order is in violation of the provisions contained in Rule 16(xi) of Delhi Police (Punishment & Appeal) Rules, 1980 which provides as under:-
(xi) If it is considered to award a severe punishment to the defaulting officer by taking into consideration his previous bad record, in which case the previous bad record shall form the basis of a definite charge against him and he shall be given, an opportunity to defend himself as required by rules.
14. Further, according to the Applicant, the Disciplinary Authority has held in its order that his previous record also shows that he is a habitual absentee. He had absented himself on 60 different occasions in the past. Such a finding of the Disciplinary Authority is arbitrary and in utter violation of the statutory provisions. He has also submitted that his absence was for reasons beyond his control and in such circumstances he should not have been subjected to judicial proceedings. He was suffering from bouts of illness which was shown as period for unauthorised absence. Since the departmental enquiry was held at his back he was denied to submit the medical documents during the enquiry. In this support he has relied upon the Apex Court judgment in Krushnakant B. Parmar Vs. Union of India and Another 2012 (3) SCC 178. In the said case it has been held as under:-
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.
15. His further contention is that he was deprived of his livelihood by conducting an enquiry which is patently illegal and nullity in law. He argued that right to livelihood is an integral right of life as enshrined in Article 21 of the Constitution of India and it is now well settled that a judicial review would lie even if there is error of law on the face of the record. The other contention of the Applicant is that the Respondents have not considered the mitigating circumstances while awarding the punishment of dismissal. According to him, it was not a grave misconduct rendering him unfit for police service. In this regard he has relied upon the judgment of the Apex Court in Shri Bagwan Lal Arya Vs. Commissioner of Police and Others 2004 (4) SCC 560. In the said case it was held as under:-
We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rules 8 (a) and 10 of the Delhi Police (Punishment & Appeals Rules, 1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punish-ment. As a result of not only he but his en-tire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the pun-ishment/order of the disciplinary authority is to be set aside.
16. He has also argued that the Appellate Authority in its order dated 10.05.2011 has taken hyper-technical view of limitation and has, therefore, rejected the appeal on 05.04.2011 without going into the merits of the contention submitted by him. Further, according to him, delay occurred was due to the circumstances beyond his control.
17. The Respondents in their reply have submitted that the departmental enquiry was initiated against the Applicant for his grave misconduct, negligence, carelessness, highly irresponsible behaviour. While he was posted in North East District and Security Unit, he remained willfully and unauthorizedly absent from Government duty without any intimation or taking prior permission of the competent authority as stated in the summary of allegations. Five absentee notices were sent to the Applicant at his native place, i.e., Village Bhanda Pur,PO Ratol PS Chandi Nagar,District Meerut(UP) with the directions to resume duty at once or in case of his illness to report to CMO/Civil Hospital, District Bulandshar for medical examination, failing which departmental action would be taken against him. But the Applicant neither resumed duty nor complied with the directions given in the absentee notices. The previous service of the Applicant also shows that he was a habitual absentee and had absented himself on 60 occasions in the past. They have also submitted that tentatively agreeing with the findings of the Enquiry Officer, a UO letter dated 3.12.2008 was sent to his residence through RI/E Block/Security which was received by his father Shri Babu Ram on 26.12.2008. While receiving the copy of findings, his father informed that the Applicant was not available in his house and whenever he comes to home, he used to say that he was coming from duty. They have also stated that keeping in view the principles of natural justice, he was asked to appear in OR on 16.01.2009 but he failed to do so. He was given other opportunities by sending UO notices on 16.02.2009 and 06.04.2009 to submit his representation but he did not respond to the said notices. Disciplinary Authority again called him on 30.04.2009 to submit his representation. However, he did not do so and the enquiry has to be decided ex-parte. As the Applicant was not responding or paying heed to various notices issued to him, the disciplinary authority decided not to decide the departmental enquiry ex-parte against him but ordered RI/E Block/Sec to depute a team of police officials who will bring the Applicant to his office so that departmental enquiry could be decided. Finally, a team of police officials reached his house in his village but he has gone to his relatives. Finally, he was produced before the Disciplinary Authority on 25.09.2009 but on 03.11.2009 after attending the Punishment Branch he slipped away. Keeping in view the above facts and circumstances of the case, the Disciplinary Authority decided that the departmental enquiry be finalized ex-parte. Thus the Applicant was dismissed from service with immediate effect and the period involved in DE was decided as period not spent on duty which was not being regularized in any manner vide order dated 10.02.2010.
18. The Respondents have also submitted that the Enquiry Officer has served the summary of allegations on 21.06.2008 against its proper receipt. He had also filed a questionnaire to that effect on the same day. They have also stated that the Disciplinary Authority after due assessment of all the evidence on record and taking into consideration the contentions of the Applicant concluded the departmental proceedings by passing a self speaking, reasoned, just and fair order and awarded the punishment of dismissal from service which is commensurate with his proved guilt. His previous absence for 60 occasions was also proved and showed his continued misconduct indicated his incorrigibility and complete unfitness for police service and deserves exemplary punishment. Further, according to them, the applicant failed to prove that he ever intimated to the department about his illness through any means or communication available to him during the absence period and availed the medical leave as advised by any medical practitioner. Therefore, his absence was unauthorized and willful, hence the same cannot be condoned. They have also stated that the Disciplinary Authority had given ample opportunity to defend his case on each occasion through conducting regular departmental enquiry but he did not avail the opportunity and failed to rebut the charge leveled against him. Further, according to them, his absence from duty in a disciplined force adversely affects the functioning of essential services. However, the Applicant always absented himself from duty without any intimation. Even after service of copy of findings on him, he was found absent from service without any intimation on his own.
19. We have heard the learned counsel for the Applicant, Shri A.N. Singh and the learned counsel for the Respondents, Mrs. Rashmi Chopra. We have also perused the departmental enquiry file made available by the Respondents. The first part of the charge that proved against the Applicant in the departmental proceedings was that he had absented himself from duty unauthorisedly on five different occasions and from the 6th spell of absence onwards, he never reported for duty. It is seen that in the year 2007 alone, he was absent for 24 days from 02.07.2007, 3 days from 03.06.2007, 38 days from 22.07.2007. Lastly, he was running absent from 06.10.2007. The second part of the charge which has been proved against him was that he was a habitual absentee and he had absented himself from duty earlier on 60 occasions for which minor punishments have been given to him but he did not mend his ways. It is noticed that the only reason given by the Applicant for his continual and long spells of absence was his ill health and financial hardship which is quite vague. He has no explanation as to what kind of illness he was suffering from for remaining absent from duty for such long spells. It is not the case of the Applicant that he had applied for leave on medical grounds and got it sanctioned. Even in the present OA, he has not explained as to why he was remaining absent from duty from 25.06.2007 onwards. As rightly submitted by the Respondent-Delhi Police, in a disciplined force unauthorized absence of officials cannot be tolerated at any cost. Such unauthorized absence disturbs the entire schedule of the police station/place of the posting of the official. After perusing his absentee statements of past and present, there cannot be any iota of doubt that the Applicant was not interested to perform his duty. Rather, absenting himself from duty without prior intimation has become his habit.
20. Further, it is seen that Applicant has been repeatedly avoiding the departmental enquiry against him hoping that he could successfully challenge the same on the ground of violation of the principles of natural justice. In our considered view, the Applicant is thoroughly mistaken. The Apex Court in Swai Singh Vs. State of Rajasthan 1986 (3) SCC 454 held that there is no such thing as technical natural justice and the requirement of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties.
21. The Apex Court has also specifically considered the menace of unauthorized absence in its judgment in Govt. of A.P. and Others Vs. Mohd. Taher Ali reported in AIR 2008 SC 375 wherein it was held that unauthorized absence by a particular member of the disciplined force is to be taken seriously and such misconduct cannot be condoned. The relevant part of the said judgment reads as under:-
In the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement.
22. In view of above discussion we do not find any merit in this case. Accordingly, the same is dismissed. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh