Central Administrative Tribunal - Delhi
Ex.Constable Harvinder Singh vs The Commissioner Of Police on 30 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1615/2012 New Delhi this the 30th day of January, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Ex.Constable Harvinder Singh MHCR, PS, Pahar Ganj, Delhi C/o Yashpal Singh Rathi E-73/A, Gali No.3, Ganga Vihar, Gikulpuri, Shahdra, Delhi. Applicant. (By Advocate Shri E.J. Verghese) Versus 1. The Commissioner of Police, Police HQRS, Ito, New Delhi. 2. The Joint Commissioner of Police (Security), Police (HQRS), Vinay Marg, New Delhi. 3. The Deputy Commissioner of Police, Security(Ops), Police HQrs, Vinay Marg, New Delhi. Respondents. (By Advocate: Ms. Parul Singh, proxy counsel for Ms. Rashmi Chopra, Counsel) O R D E R (ORAL)
Shri G. George Paracken:
The Applicant is aggrieved by the Disciplinary Authoritys order dated 04.10.2010 dismissing him from service and the Appellate Authoritys order dated 02.06.2011 rejecting his appeal against the aforesaid order of the Disciplinary Authority.
2. His main ground of challenge of the aforesaid orders is that the same higher authority, namely, Inspector Aas Mohd. had framed the charge against him and also conducted the Departmental Enquiry as Inquiry Officer (IO for short). In this regard the charge against him dated 03.05.2010 issued by the said officer is reproduced as under:-
CHARGE I, Inspector, Aas Mohd, RI/Main Security Line Charge you Ct. Harvinder No. 508/C (Now 6445/Sec) that while you posted in Central District, Delhi had absented yourself from duties on the following occasion willfully and unauthorizedly.
Period of absent Day Hrs Mts 1 45-B dt. 12.10.2006 30-B dt. 14.03.2007 153 16 00 2 28-B dt. 06.09.2007 35-B dt. 06.09.2007 00 03 30 3 10-B dt. 21.02.2008 07-B dt. 22.02.2008 01 01 00 4 62-B dt. 26.03.2008 26-B dt. 17.04.2008 22 03 00 5 52-B dt. 08.05.2008 77-B dt. 08.05.2008 00 12 10 6 22-B dt. 19.05.2008 18-B dt. 20.05.2008 00 23 05 7 101-B dt. 23.06.2008 36-B dt. 24.06.2008 00 23 05 8 38-B dt. 05.07.2008 49-B dt. 09.01.2009 188 07 00 Total 377 16 50 The following absentee notices were issued to you at your residential address i.e. V & PO Mandi, P.S. Titavi, District Muzaffar Nagar, (UP) with the directions to resume your duty at once. You were also directed to report to CMO, Civil Hospital District, Muzaffar Nagar, (UP) in case of illness, failing which strict disciplinary action would be taken against you but you did not obey the orders of Senior Officers.
SN Absentee Notice No. Date 1 19782-87/SIP/AC/C 18.12.2006 2 3258-63/SIP/AC/C 12.02.2007 3 11710-716/SIP/AC/C 24.07.2008 4 17501-506/SIP/AC/C 24.11.2008 The absentee notice dated 24.11.2008 was served upon your wife Smt. Ritu at Muzaffar Nagar (UP) on 21.12.2008 but you did not bother to resume your duty.
On perusal of your previous absentee record it reveals that before above mentioned absents you have also absented yourself on 60 previous different occasions which have been decided and you have been awarded Censure, Warning, LWP, LKD etc. but there seems no change in your habit.
The above act on your part (Harvinder No. 508/C (Now 6445/Sec.) amounts to gross misconduct, indiscipline, negligence, dereliction in the discharge of your officials duties and unbecoming of a member of a police force which renders you liable for punishment under the provisions of Delhi Police (Punishment and Appeal) Rules, 1980 read with Section 21 of Delhi Police Act-1978.
(Aas Mohd.) (EO) RI/Main Security Lines, DCP/Security (ops)
3. According to the report of the Inquiry Officer, the Applicant was summoned to attend the enquiry proceedings on 19.10.2009, 19.11.2009, 26.11.2009, 7.12.2009, 30.12.2009 and 23.02.2010 and notices were served on him but he did not attend. Finding no alternative, the Inquiry Officer proceeded in the matter, ex-parte. The Enquiry Officer framed the charge and copy of the charge was sent at his native village through Registered A.D. on 03.05.2010 with the direction to submit his reply and to attend the DE proceedings. Another copy of the charge was also sent through RI/E-Block/Security for delivering the same upon him which was served upon him on 09.05.2010. He was again directed to attend the DE proceedings on 28.05.2010, but he neither attended the DE proceedings, nor submitted his reply to the charge. The Enquiry Officer concluded his findings thereby proving the charge against him. The relevant part of the enquiry report submitted by the aforesaid officer on the above mentioned charge is also reproduced as under:-
Discussion of evidence.
The PE file and relevant documents, available on record were examined thoroughly at length to assess quantum of default of the defaulter Ct Harvinder No. 645/Sec. As per available record letter No. 19782/SIP/Central dated 18.12.2006 was addressed to SP Muzaffar Nagar (UP) and its copes vide No. 19783-87/SIP/AC-I/C dated 18.12.2006 were endorsed to CMO, Muzaffar Nagar, SHO/Chandni Mahal, Delhi and Constable Harvinder, No. 6454/Sec for necessary action. Another Letter No. 3258/SIP/AC-I/C dated 12.02.2007 was addressed to SP Muzaffar Nagar and its copies vide No. 3259-63/SIP/C dated 12.02.2007 were addressed to CMO, Muzaffar Nagar (UP), SHO/Chandhi Mahal, Central District Delhi, LO/PS Jama Masjid, Delhi and to Ct. Harvinder No. 6445/Sec. for necessary action. Further a letter vide No. 11710/SIP/AC-I/C dated 24.07.2007 was addressed to SP Muzaffar Nagar and its copies vide No. 11711-716/SIP/AC-I/C dated 24.07.2007 were endorsed to CMO, Muzaffar Nagar (UP), SHO/PS Pahar Ganj, Central District, Acctt. Central District, LO/Jama Masjid and to Constable Harvinder No. 6454/Sec. for necessary action. Letter No. 17502-506/SIP/C dated 24.11.2008 addressed to SHO/Chandhi Mahal for necessary action was received by the delinquents wife Ritu against her proper receipt. During the DE proceedings he was summoned on each hearing but he neither attended the proceedings nor sent any intimation about his absence. During the course of DE proceedings maximum time he remained absent from duty. However, a summon was issued vide No. 294/RI/Sec. dated 21.05.2010 to the delinquent through a special messenger Ct. Satish Prakash, No. 5373/Sec. to attend the DE proceedings on 28.05.2010 with directions that if he fails to attend the DE proceedings on that date it will be presumed that he has nothing to say anything in his defence and the findings will be submitted ex-parte before the disciplinary authority. He received the copy of summon on 27.05.2010 against proper receipt but did not attend the proceedings.
Conclusion:
From the statement of PWs documents available to record, it is proved that Ct. Harvinder, 6445/Sec. is a habitual absentee and incorrigible type of police personnel. He absented himself from his duty willfully and unauthorizedly.
Inspr. (Aas Mohd.) RI/Main Security Lines, HAP/Sec.
4. Tentatively, agreeing with the findings of the Enquiry Officer, the Disciplinary Authority sent the copy of findings to him vide u.o. letter No.6349/HAP/Sec.(P-1/Bn.) dated 07.07.2010 with a direction to make his representation or submission, if any, against the same. He was also directed to appear before the disciplinary authority in the Orderly Room on the date and time so fixed on his request, if he so desires. Since he was running absent, a copy of u.o. letter dated 07.07.2010 together with a copy of findings of the Enquiry Officer was served upon his father (Shri Sansar Singh) and wife (Smt. Ritu) against their proper receipt on 31.07.2010 through process server Head Constable Ravinder Singh No.961.Sec. His father, Shri Sansar Singh was also contacted over Mobile No.09759370611 by the SI/Deployment on 31.07.2010, who in turn informed that he will make his son to appear before the disciplinary authority within 4-5 days. But he neither appeared before the disciplinary authority, nor sent any written representation against the findings of the Enquiry Officer. Hence, the disciplinary authority had also no other option but to decide the case ex-parte, on its merits
5. According to the learned counsel for the Applicant, the same officer issuing the charge sheet against the delinquent and conducting the enquiry by himself is against the principles of natural justice. According to him, in this case, Inspector Aas Mohd. has been playing the role of the prosecutor as well as the judge and it is against principle of natural justice. In this regard, he has relied upon the judgment of the Apex Court in the case of The State of Uttar Pradesh Vs. Mohammad Nooh 1957 SCR 595 wherein the relevant part of the said judgment reads as under:-
Then, thirdly, were the principles of natural justice ignored in this case? That also is, I think, settled by authority.
What happened here? The District Superintendent of Police examined a certain witness in the course of the enquiry. It seems that that witness's evidence was considered a vital link in the chain of evidence against the respondent. The District Superintendence of Police reached the conclusion that the witness had turned hostile. He may have been right about that, but he also considered it necessary to refute this evidence and make good the lacuna by bringing other material on record. Apparently, no other witness was available, so the District Superintendent of Police, who seems to have had personal knowledge about the facts, stepped down from the Bench and got his testimony recorded by another authority, once before charge and again after charge, and each time, after that was done, stepped back on to the Bench in order solemnly to decide whether he should believe his own testimony in preference to that of the witness who, in his judgment, had committed perjury and gone back on the truth. It hardly matters whether this was done in good faith or whether the truth lay that way because the spectacle of a Judge hopping on and off the Bench to act first as Judge, then as witness, then as Judge again to determine whether he should believe himself in preference to another witness, is startling to say the least. It would doubtless delight the hearts of a Gilbert and Sullivan Comic Opera audience but will hardly inspire public confidence in the fairness and impartiality of departmental trials; and certainly not in the mind of the respondent. Even before the Constitution, departmental trials were instituted to instil a sense of security in the services and inspire confidence in the public about the treatment accorded to Government servants. The question in these cases is always:
"Whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice."
6. He has also argued that in this case, bias and personal interest have crept in whereas rule of natural justice demands that the judge must not have them in the subject matter, for impartial decision. According to the principles governing bias,no man shall be a judge of his own cause and justice should not only be done but manifestly and undoubtedly seem to be done and the Tribunals are bound by the said principle as held by the Apex Court in Mineral Development Ltd. Versus State of Bihar, AIR 1960 (SC) 468 wherein it has been held as under:-
Tribunals or authorities who are entrusted with quasi-judicial functions are as much bound by the relevant principles governing the "doctrine of bias" as any other judicial tribunal. This Court in recent decision in Nageswara Rao v. The State of Andhra Pradesh Civil Appeals Nos. 198 to 200 of 1959 : (AIR 1959 Sc 376) observed :
"The principles governing the "doctrine of bias" vis-`-vis judicial tribunals are well-settled and they are : (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is "subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not take part in the decision or sit on the tribunal"; and that "any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it is sufficiently substantial to create a reasonable suspicion of bias". The said principles are equally applicable to authorities, though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others, i.e., authorities who are empowered to discharge quasi-judicial functions".
7. In this regard, the learned counsel for the applicant has also relied upon the judgment of the Apex Court in Gullappalli Nageswararao and Others Vs. State of Andhra Pradesh and Others AIR 1959 SC 1376 wherein it has been held as under:-
6. At this stage, it would be convenient to notice briefly, the decisions cited at the Bar disclosing the relevant principles governing the "doctrine of bias". The principles governing the "doctrine of bias" vis-`-vis judicial tribunals are well-settled and they are: (i) no man shall be a judge in his own cause; (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is "subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal"; and that "any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any interest, though not pecuniary, will have the same effect, if it be sufficiently substantial to create a reasonable suspicion of bias". The said principles are equally applicable to authorities, though they are not courts of justice or judicial tribunals, who have to act judicially in deciding the rights of others, i.e., authorities who are empowered to discharge quasi-judicial functions. The said principles are accepted by the learned Counsel on both sides, but the question raised in this case is whether, when a statute confers a power on an authority and imposes a duty on it to be a judge of its own cause or to decide a dispute in which it has an official bias, the doctrine of bias is qualified to the extent of the statutory authorization. In Rex v. Bath Compensation Authority, 1925-1 KB 685 the licensing justices of a county borough referred the application for the renewal of the licence of a hotel to the compensation authority of the borough and also resolved that a solicitor should be instructed to appear before the compensation authority and oppose the renewal of the licence on their behalf. The solicitor so instructed appeared before the authority and supported the opposition, and in the result the compensation authority refused the renewal subject to payment of compensation. It may be mentioned that a majority of the justices who sat on the compensation tribunal and voted against the renewal of the licence had as members of the licensing committee been parties to the resolution referring the question of renewal to the compensation authority. The Court of Appeal by a majority, Atkin L.J. dissenting, held that in view of the provisions of the Licensing Act, 1910, the facts in that case did not disclose such bias or likelihood of bias as would disqualify them from sitting on the tribunal. This decision was reversed by the House of Lords on appeal (reported in Frome United Breweries Co. Ltd. v. Bath Justices, 1926 AC 586). The House of Lords held that the decision of the tribunal, whereon three justices who referred the matter to the said authority sat, must be set aside on the ground that no one can both be a party and a judge in the same cause. Viscount Cave L.C. meets the argument based upon the statutory duty thus at p. 592.
"No doubt the statute contemplates the possibility of the licensing justices appearing before the compensation authority and taking part in the argument; for it is provided by S. 19, sub-s. 2, that the compensation authority shall give any person appearing to them to be interested in the question of the renewal of a licence, "including the licensing justices", an opportunity of being heard. But the statute nowhere says that justices who elect to appear as opponents of the renewal and take active steps (such as instructing a solicitor) to make their opposition effective, may nevertheless act as judges in the dispute; and in the absence of a clear provision to that effect I think that the ordinary rule, that no one can be both party and judge in the same cause, holds good".
8. Further, the learned counsel for the Applicant argued that the punishment of dismissal imposed upon the applicant was grossly disproportionate. According to him, the applicant did not commit any misconduct as his absence from duty was for compelling reasons and beyond his control. He has also stated that the charge-sheet contained the details of his previous absenteeism/delinquency which had already been decided and he has been punished by way of censures/warnings. Therefore, he cannot be charged again for the same absenteeism and punish him again incorporating them as fresh charges. In this regard, he has relied upon the judgment of the Apex Court in the case of Bhagwan Lal Arya Vs. Commissioner of Police and Others AISLJ 2004(2) 640 wherein it has been held as under:-
8. We have perused the relevant orders passed by the disciplinary authorities, the Central Administrative Tribunal and the High Court. It is seen from the records that the domestic enquiry has been conducted properly and the principles of natural jus-tice has been strictly followed. There is no denial of reasonable opportunity. We, therefore, hold that the findings are based on evidence and is not liable to be interfered with. We also hold that disciplinary action initiated against the appellant is in accord-ance with the rules and regulations and not vitiated by any mala fides. However, we find that there is merit and substance in regard to the next contention i.e. punishment is totally disproportionate to the proved mis-conduct of the appellant. It is contended that the punishment order passed is against the statutory provisions of Rules 8 and 10 of the Delhi Police (Punishment and Appeal, Rules 1980).
9. Rules 8(a) and 10 of the Delhi Police (Punishment and Appeal, Rules 1980), reads as under:
"Rule 8. Principles for inflicting penalties - (1) Dismissal/Removal- the punishment of dismissal or removal from service shall be awarded for the act of grave misconduct ren-dering him unfit for police service.
"Rule 10. Maintenance of discipline - The previous record of an officer, against whom charges have been proved, if shows contin-ued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dis-missal from service. When complete unfit-ness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank."
10. In the instant case, the appellant had absented himself for 2 months, 8 days and 17 hours on medical grounds. The above two Rules 8, 10 provide that penalty of re-moval can be imposed only in cases, if grave misconduct and continued misconduct in-dicating incorrigibility and complete unfit-ness for police service. The absence of the appellant on medical grounds with applica-tion for leave as well as sanction of leave can under no circumstances, in our opin-ion, be termed as grave misconduct or con-tinued misconduct rendering him unfit for police service.
11. The order dated 16-1-1995 passed by the respondents was produced by the respondents themselves in their reply to C.W.P. before the High Court of Delhi that they had sanctioned leave without pay for the period from 7-10-1994 to 15-12-1994 the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after is-suing sanction for leave for the period in question, the employee's legitimate expec-tation would be that no stern action would be taken against him with respect to the al-leged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indi-cating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal .from service is excessive and dis-proportionate. We are of the view that the punishment of dismissal/removal from serv-ice can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of com-plete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/ reasons cannot become basis for awarding such a punishment. 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.
12. The disciplinary authority without caring to examine the medical aspect of the absence awarded to him the punishment of removal from service since their earlier order of termination of appellants service un-der Temporary Service Rules did not mate-rialise. No reasonable disciplinary author-ity would term absence on medical grounds with proper medical certificates from Gov-ernment Doctors as grave misconduct in terms of Delhi Police (Punishment and Appeal Rules, 1980). Non application of mind by quasi judicial authorities can be seen in this case. The very fact that respondents have asked the appellant for re-medical clearly establishes that they had received applicant's application with medical certificate .This can never be termed as wil-ful absence without any information to com-petent authority and can never be termed as grave misconduct.
13. In B.C. Chaturvedi v. Union of India (AIR 1996 SC 484 (three Judges Bench) the question posed for consideration was as to whether the High Court /Tribunal can direct the authorities to reconsider punish-ment with cogent reasons in support thereof or reconsider themselves to shorten the liti-gation. In this case, at para 18, this Court has observed as under:-
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to main-tain discipline. They are invested with the discretion to impose appropriate punish-ment keeping in view the magnitude or grav-ity of the misconduct. The High Court/Tri-bunal, while exercising the power of judi-cial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appel-late authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disci-plinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment cogent rea-sons in support thereof."
14. Thus, the present one is a case wherein we are satisfied that the punish-ment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the mat-ter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punish-ment of removal from service and instead direct the appellant to be reinstated in serv-ice subject to the condition that the period during which the appellant remained absent from duty and the period calculated upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spent on duty. The appellant shall not be entitled to any serv-ice benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmen-tal proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.
The appeal is allowed in the terms abovesaid.
No costs.
9. Another argument of the learned counsel for the Applicant is that charge-sheet was never served on him properly. It was, in fact, served upon his wife on 24.11.2008 and she herself was sick during that period. According to him, the charge-sheet was served upon him only on 09.05.2010 but without waiting for his defence/reply, the Inquiry Officer submitted his report on 21.06.2010 after concluding the ex-parte proceedings denying him natural justice.
10. The respondents in their reply have stated that willful and unauthorized absence, if taken leniently, will not only encourage others in a disciplined force to follow suit but will also destroy the whole fabric of disciplined force. Apart from it, unauthorized absence from duty manifests lack of devotion to duty. It is a matter of record that the applicant has also absented himself on 60 different occasions earlier also in the past willfully and knowingly without intimation or prior permission of the competent authorities. The disciplinary authority had gone through the record and was constrained to conclude that the applicant deliberately did not join the D.E. proceedings and/or responded to various opportunities given to him to present his case before the Inquiry Officer or the Disciplinary Authority, which shows he was not interested or bothered to join the proceedings despite given sufficient opportunities. In view of the above act of grave misconduct rendering one completely unfit for police service, according to the disciplinary authority, there is no other penalty except dismissal from service which could be awarded to such incorrigible type of person. Accordingly, he was dismissed from service and the period of this absence i.e. 377 days, 16 hours and 50 minutes was treated as period not spent on duty on the basis of no work no pay vide office order No. 9843-9942/HAP/Sec. (P-I/Bn.) dated 04.10.2010. He received the copy of dismissal order on 14.10.2010 and filed his appeal on 10.11.2010. The same was considered and rejected by the appellate authority vide order No.60-62/Appeal Cell/Jt. CP/Sec. dated 02.06.2011.
11. They have further submitted that his previous service record revealed that prior to the present absences which is the subject matter of this OA, the applicant willfully, unauthorizedly and without any intimation absented himself from duty on 60 occasions although they were regularized after imposition of penalty or like censures etc. According to them, he was in the habit of absenting himself from duty and failed to mend his ways despite ample opportunities granted to him by the authorities on each occasions. Besides, during the DE proceedings also, he chose to remain absent. Further, according to them, the plea of illness was only an afterthought to condone his behaviour as it is apparent from the record of the case that despite granting several opportunities, he failed to participate in the proceedings.
12. They have also submitted that as per Rule 16(i) of Delhi Police (Punishment & Appeal) Rules, 1980 read with the provisions of para 4(1) of SO No.A-20, the Enquiry Officer appointed in a departmental proceedings shall be senior to the defaulting officer by at least two ranks. As such, a subordinate rank of Inspector is competent and eligible to conduct the departmental proceedings against an official in respect of rank of Constable. The applicant was also holding the rank of Constable at the time of initiation of the departmental enquiry against him and Inspr. Aas Mohd. was empowered to conduct the proceedings in his case.
13. Further, the applicant failed to establish his case during the course of the enquiry proceedings despite ample opportunity given to him to defend his case and put forth his contentions and evidence which could reasonably prove that the circumstances under which he remained absent from duty was beyond his control and he was unable to inform the department about the same. He never intended to intimate the department about his alleged prolonged illness or sought prior permission to avail medical rest so advised by the Medical Officer on each occasions. On the bare perusal of photocopies of medical certificates submitted by him would show that a private doctor of Neha Homeopathic Clinic, Jhinjhana (Mujaffarnagar) U.P. gave him medical certificate on 13.03.2007 for the period from 13.10.2006 to 14.03.2007, on 16.04.2008 for the period 27.02.2008 to 16.04.2008 and on 08.01.2009 for the period from 06.07.2008 to 08.01.2009. The doctor nowhere advised any medical rest for the aforesaid period.
14. We have heard the learned counsel for the parties. We have also perused the documents available on record. The charge dated 30.03.2010 against the applicant was that he unauthorizedly absented himself from duty for 377 days, 16 hours and 50 minutes during the period from 12.10.2006 to 09.01.2009. The last spell of his absence was from 5.7.2008 to 9.1.2009. Absentee notices were sent to him but he did not join duty. Absence notice was also served upon his wife at Muzaffarnagar (UP) on 21.12.2008. Again he did not join duty. During the entire disciplinary proceedings against him also he has chosen not to attend. Hence, the enquiry was held ex-parte. Even the Disciplinary Authority was also compelled to pass its order ex-parte.
15. First of all, we should say that since the Applicant has not availed of the opportunities granted to him to defend his case, he has no right to assail the orders passed by the authorities. It is seen that the Applicant was a habitual absentee and it was for the said reason that the respondents have perused the history of his absences and found that he had absented from duty on 60 previous occasions for which he was awarded various punishments such as censure, warning, LWP, LKD, etc. The Respondents have, therefore, held the disciplinary proceedings against him for the aforesaid charge also. The EO held that the charges have been proved. Thereafter, the Disciplinary Authority imposed upon him the punishment of dismissal from service. The Appellate Authority rejected his appeal and upheld the order of the Disciplinary Authority.
16. It is a well settled legal position by the Apex Court that habitual absence from duty is a serious offence in a disciplined force. The Apex Court in State of U.P. Vs. Ashok Kumar Singh and Others 1996 (1) SCC 302 has specially held that a police official, serving in a disciplined force is required to adhere to the rules and procedures more strictly than any other employee. The relevant part of the said judgment is as under:-
8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that his absence from duty would not amount to such a grave charge'. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that 'the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No. case for interference with the punishment is made out.
17. We also do not find any merit in the submission of the Applicant that his previous absenteeism could not have been considered again and included in the present Charge Memo.
A habitual absentee is more of a burden to the department rather than of any assistance. In this regard, the judgment of the Apex Court in the case of State of Punjab Vs. P.L. Singla 2008 (8) SCC 469 is quite relevant and its operative part is extracted below:-
11. Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.
12. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.
13. We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned. In fact in Security services where discipline is of utmost importance, even a few of days overstay is viewed very seriously. Be that as it may.
14. Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise). Where the punishment awarded for the unauthorized absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorized absence remains unaccounted, it will result in break in service, thereby affecting the seniority, pension, pay etc., of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment.
18. As regards the proportionality of punishment is concerned, it is a well settled principle that the Courts and Tribunals have hardly any scope to interfere. Only in cases where punishment is shockingly disproportionate to the misconduct proved, courts may remit the case to the Disciplinary Authority to reconsider the punishment imposed. In this regard, the Apex Court in Om Kumar & Others Vs. Union of India 2001 (2) SCC 386 held as under:-
69. The principles explained in the last preceding paragraph in respect of Art. 14 are now to be applied here where the question of 'arbitrariness' of the order of punishment is questioned under Art. 14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India (1987) 4 SCC 611 : (AIR 1987 SC 2386 : 1988 Cri LJ 158), this Court referred to 'proportionality' in the quantum of punishment but the Court observed that the punishment was 'shockingly' disproportionate to the misconduct proved. In B. C. Chaturvedi v. Union of India (1995) 6 SCC 749 : (1995 AIR SCW 4374 : AIR 1996 SC 484 : 1996 Lab IC 462), this Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham.
71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Art. 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Art. 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the Administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and (in) such extreme or rare cases can the Court substitute its own view as to the quantum of punishment.
19. The Apex Court in State of Rajasthan and Another Vs. Mohd. Ayub Naz 2006 (1) SCC (L&S) 175 held as under:-
9. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Raj as than inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service.
20. We also do not find any merit in the argument of the learned counsel for the Applicant that the Enquiry Officer has played the role of the prosecutor and as well as the judge. Similarly, his argument that bias and personal intents have crept in the enquiry proceedings as the Enquiry Officer has conducted himself as a judge of his own cause has also no basis. On the contrary, the Respondents have had held the proceedings in accordance with Rule 16 (1) of the Delhi Police (Punishment & Appeal) Rules, 1980 and its provisions are reproduced below:-
(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.
21. In the above facts and circumstances of the case, we do not find any merit in this OA and accordingly the same is dismissed. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh