Central Administrative Tribunal - Delhi
Ex. Head Constable Baljeet Singh vs Govt. Of Nctd on 15 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2044/2008 MA No. 1510/2008 New Delhi, this the 15th day of December, 2009 HONBLE SHRI L.K. JOSHI, VICE CHAIRMAN (A) HONBLE DR. K.B. SURESH, MEMBER (J) Ex. Head Constable Baljeet Singh S/o Late Sh. Nar Singh R/o Village & P.O. Sampler, District Rohtak, Haryana. Applicant (By Advocate: Sh. Sachin Chauhan) Versus 1. Govt. of NCTD, Through Commissioner of Police, Police Headquarters, I.P.Estate, New Delhi. 2. Joint Commissioner of Police, New Delhi Range, Through Commissioner of Police, Police Headquarters, I.P.Estate, New Delhi. 3. Addl. Deputy Commissioner of Police, New Delhi District, Through Commissioner of Police, Police Headquarters, I.P.Estate, New Delhi. Respondents (By Advocate: Sh. Rishi Prakash) ORDER
Mr. L.K.Joshi, Vice Chairman (A) The following charge was communicated to Head Constable (HC) Baljeet Singh by the inquiry officer during the course of disciplinary proceedings:
It is alleged against you, HC Baljit Singh, No.552/ND (PIS No.28780232), that while posted at P.S.Mandir Marg you were detailed for duty at R.K.Ashram Marg Picket from 8 AM on 14.10.2004 but you did not turn up for your duty and was marked absent vide DD No.44-B, dated 14.10.2005 at P.S. Mandir Marg, Absentee Notices were sent to your village address on 30.12.2004, 14.02.2005, 24.03.2005 and 25.04.2005 asking you to join your duties, but you did not join your duties despite noting contents of Absentee Notices dated 24.03.2005 and 25.04.2005 and still running absent unauthorisedly without any information and permission of the competent authority. Further, on scrutiny of your service records, it has been found that you remained absent on 46 different occasions in the past for which you had been awarded various punishments. It shows that you are still not ready to mend your ways and in the habit of absenting yourself unauthorisedly.
The above act on your part amounts gross negligence, indiscipline and dereliction in the discharge of your official duties, which renders you liable to be dealt with departmentally under the provision of Delhi Police (Punishment and Appeal) Rules-1980. The inquiry officer recorded the following conclusion:
It is very clear from the testimony of PWs and the documents on file, that the delinquent HC has remained absent since 14.10.2005 unauthorisedly without any information despite receiving absentee notices directing him to resume duty. It is also clear that the delinquent had remained absent on 46 different earlier occasions. However, keeping in view his physical and mental condition, he deserves a lenient consideration. Eventhough the medical paper he produced was not enough to justify his part, he was visibly troubled with his physical problem, which made him difficult to move easily and disturbed him mentally. It is also worthwhile to mention that he accepts his guilty rather than defending it with cooked story and by producing concocted documents. The disciplinary proceedings culminated in the dismissal of the Applicant from service by order dated 30.05.2006. The appeal preferred against the order of the disciplinary authority was rejected by the appellate authority by order dated 18.05.2007.
2. The only submission made before us by the learned counsel for the Applicant is that the Applicant has been awarded a punishment, which is disproportionate to the charge against him. It is urged that the Applicant has completed 28 years of service and he is eligible for drawing pension. The learned counsel would contend that the Applicant is completely debilitated by illness and can barely move. It is further argued that the charge of previous unauthorized absence has not been proved against him. In view of these mitigating circumstances, his punishment should be modified to compulsory retirement. It is pointed out that even the inquiry officer has pointed out that the charged officer deserved leniency because of his physical and mental condition. Reliance has been placed on State of Punjab and others V. Mohinder Singh, (2005) 12 SCC 182 and Ex. H.C.Rajender Singh V. Union of India and ors., 2008 (2) AISLJ 35 (Delhi High Court).
3. The Respondents have strenuously opposed the plea of the Applicant by filing counter affidavit, challenging the cause of the Applicant. The learned counsel for the Respondents would contend that the quantum of punishment has to be decided by the disciplinary authority and the Tribunal may not interfere in the matter of quantum of punishment.
4. We have given our utmost consideration to the rival contentions and have minutely perused the record placed before us.
5. We note at the outset that it is not correct to state that the charge of previous instances of absenteeism on 46 occasions has not been proved. The inquiry officer has held charge to be proved in toto. The appellate authority had heard the Applicant in person. In regard to the previous record of unauthorized absence, the following has been observed in the appellate order:
The appellant further states the decision in respect of earlier 46 absents has already been taken and the appellant was not liable for double punishment on this count. The disciplinary authority has taken it into consideration while dismissing him from service which is against the principles of natural justice. The punishment order, as such, needs to be set aside. His previous bad record has been taken into consideration while initiating the D.E. in view of Rule 16(xi) of Delhi Police (Punishment & Appeal) Rules, 1980. Thus, the punishment order is valid, legal and justified. The Applicant has thus himself accepted the fact of his unauthorized absence in the past also.
6. The report of the inquiry officer was sent to the Applicant on 21.02.2006. Reminders were sent to him on 20.04.2006, 27.04.2006, 3.05.2006 and 11.05.2006, as mentioned in the order of the disciplinary authority. He, however, did not make any representation against it. The case was then decided ex parte after the notices did not elicit any response from him. The disciplinary authority has observed that the charged officer did not either submit medical certificate or apply for leave. He availed of treatment from Brahma Shakti Sanjivini Super Speciality Hospital, Bahadurgarh, Distt. Jhajjar, Haryana, but never availed the facilities of authorized hospital. The appellate authority heard the Applicant in person and after considering the appeal, inter alia, made the following observations:
The appellant states he was not in a condition to resume his duties though the absentee notices were sent to him. He was bed ridden and could not walk properly though he has recovered then. He had not absented himself unauthorisedly and intentionally. He was not in such a condition to move properly and it was not possible for him to inform the competent authority. He had not intentionally violated the provisions contained in CCS (Leave) Rules, 1972 and Standing Order No.111/88 of Delhi Police. He has also requested to take a lenient view. The contention raised by the appellant has no force. The appellant vide para 6 of his appeal has himself stated that I am still to date is not in a position to resume my duty due to pain in my knees and I cannot walk properly. Whereas in para 7 he has stated that I was bed ridden and cannot walk properly though I have recovered now. These contradictory versions categorically established that the appellant was not actually ill and has violated the provisions of CCS (Leave) Rules, 1972 and SO No.111 of Delhi Police.
7. In Mohinder Singh (supra), the aforementioned constable of the Punjab Police had been dismissed from service on the charge of five-and-a-half-months unauthorized absence. In this case also he pleaded for consideration to convert his punishment of dismissal to compulsory retirement because of his service of 23 years. The counsel for the appellant, State of Punjab stated that the case of the respondent, Mohinder Singh, would be considered sympathetically if he gave a representation to the concerned authority. The Honourable Supreme Court then directed that the appellant would be at liberty to pass a fresh order on the representation of the respondent, Mohinder Singh. This case is distinguishable. There was no charge of past misconduct. The concerned authority had agreed to reconsider the case. Moreover, no law has been laid down in this case. In Ex (HC) Rajinder Singh (supra), the order of dismissal was on the basis of charge that he was found absent from duty at the time of checking, while he was supposed to be on duty and he was found drunk. The charge of being drunk was not clearly proved. The Honourable Delhi High Court observed thus in paragraph 9 and 10 of the judgement:
9. In the instant case also, the petitioner has been dismissed from service on account of absence from duty, no matter the absence was for a few hours and not for 5 - 1/2 months, as was in Mahinder Singhs case. Intoxication, while on duty, was the only other charge for which the petitioner has been found guilty. But the charge stands on a shaky ground with the finding recorded by the Appellate Authority that the MI room in which the petitioner was taken for examination, did not have the necessary facilities to determine the extent of his intoxication. Suffice it to say that the petitioners absence, no matter for a few hours, and the aberration of being found intoxicated while on duty, may render him an undesirable person for retention in the Force as opined by the Disciplinary Authority and the Authorities above him. The object of removing him from the Force to prevent indiscipline spreading among other ranks could, however, be achieved by sending the petitioner home on compulsory retirement instead of dismissal. That is so, particularly when the petitioner had served the Force for nearly 23 years and was otherwise entitled to seek premature discharge with all retiral benefits. Although, according to the petitioner such a request stood made before the incident in question which had, according to him, been allowed also yet there is nothing on record to establish that any such discharge had been sanctioned by the Competent Authority. The fact, however, remained that the petitioner had served for a long period and earned a valuable right to receive pension and other benefits for the rest of his life, which the petitioner would forfeit in case the punishment was, by way of dismissal. The Disciplinary, Appellate or Revisional Authorities do not appear to have kept in mind these aspects while directing dismissal of the petitioner. Dismissal from service of a person, who has not yet earned pension, may not be so harsh as is dismissal of one, who has already earned such a right. What makes the punishment unduly disproportionate and harsh is the forfeiture of rights which the delinquent has acquired by reason of his long service. Cutting short his tenure in the service may be one facet of the order of dismissal but more severe than that is the denial to him and his family sustenance for the rest of their lives. We are, therefore, of the considered opinion that the punishment by way of dismissal from service was, in the instant case, totally disproportionate to the gravity of the offence committed by the petitioner.
10. The next issue then is whether we ought to modify the punishment suitably or remand the matter back to the competent authority for doing the needful. The normal rule in such a situation is remission back to the Competent Authority to pass a suitable order on the subject. Although, a Writ Court is, within its powers to pass an effective order to cut short avoidable delay and procastination in settlement of the case yet that power is sparingly exercised. We see no compelling reason in the present case why we should depart from the usual course of remanding the matter back to the Competent Authority for passing an appropriate order. Having regard to the facts and the circumstances of the case, we are also of the view that instead of Disciplinary Authority or the Appellate Authority, it would be more appropriate if the matter is remitted back to the Director General of CRPF, HQ, New Delhi to pass an appropriate order for passing a fresh order reducing the punishment or dismissal from service to such lesser punishment as may be considered fit including compulsory retirement. This case is clearly distinguishable in facts.
8. In the instant case before us, the Applicants past record of unauthorized absence weighs heavily against him. He has not given any application for leave. He has refused to answer notices. This is willful defiance of authority and shows his incorrigible behaviour.
9. The Honourable Supreme Court in Chairman & Managing Director, V.S.P. and others Vs. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569 have observed that the Tribunal/Court may not interfere in quantum of punishment out of sympathy and emotions. It has been held thus:
16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.
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21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.)
22. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order.
10. In view of the above consideration, we do not consider it a fit case to interfere with the order of the disciplinary and appellate authorities. The OA is dismissed. No costs.
( Dr. K.B. Suresh ) ( L.K. Joshi ) Member (J) Vice Chairman (A) sd