Central Administrative Tribunal - Madras
P Irisan vs Ut Of Pondicherry on 28 January, 2025
1 OA No.310/01905 of 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01905/2016
Dated this the 28th day of January, Two Thousand Twenty Five
CORAM :
HON'BLE MR M. SWAMINATHAN. MEMBER (J)
AND
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, MEMBER(A)
P. Irisan,
P.C. 1634 (Under desertion),
PAP 'D'Coy),
No.6, 1st Street,
Sooramangalampet,
Netapakam (Commune)
Nettapakam Post, Puducherry. .. Applicant
By Advocate M/s. Giridhar & Sai
Vs
1. Union of India,
rep by The Secretary to Government,
Government of Puducherry,
Chief Secretariat, Puducherry.
2. The Inspector General of Police,
Government of Puducherry,
Beach Road, Puducherry.
3. The Senior Superintendent of Police (C&I)
O/o The Inspector General of Police,
Police Department, Puducherry. .. Respondents
By Advocate Mr. R. Syed Mustafa
2 OA No.310/01905 of 2016
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) This OA has been filed by the applicant seeking the following relief:
(i) To call for records relating to Order No. OSD/De-
1/25-6/SSP/(C&I)/2013, dated 07.03.2016 passed by the 3rd respondent;
(ii) To call for records relating to Order No. OSD/DE- 1/25-6/SP(C&I)/2013, dated 31.08.2016 passed by the 2nd respondent;
(iii) To direct the 2nd respondent to reinstate the applicant into service w.e.f. 01.03.2013 with arrears of pay and allowances and all other consequential benefits;
(iv) To ward costs, and pass such further and other orders as may be deemed and proper and thus render justice"
2. Brief facts of the case, as submitted by the applicant are as follows:
The applicant, a Police Constable, took leave starting from 01.03.2013 due to ill health, submitting the leave application through his wife. After the leave expired, he reported for duty but was denied rejoining and declared a deserter. A Charge Memo was issued for unauthorized absence, and an inquiry was conducted without following natural justice principles, resulting in the applicant's dismissal. His appeal against the penalty order was rejected, prompting the filing of the present OA.3 OA No.310/01905 of 2016
3. The applicant's counsel argues that the applicant fell ill and was advised by a physician to rest, which led him to take leave. The leave application was properly submitted through his wife, so his absence should not be considered unauthorized. It was further stated that if the leave application was not rejected or communicated to the applicant by a competent authority, it should be presumed to have been accepted.
Therefore, the applicant cannot be considered absent without authorization.
4. The counsel also highlighted that during the inquiry, none of the prosecution witnesses were present, and their statements, which were not provided to the applicant, were used as evidence. This denied the applicant the opportunity to cross-examine the witnesses. Additionally, the applicant was not allowed to present or examine his wife as a witness.
5. The counsel for the applicant further argued that the applicant was not allowed to appoint a Defence Assistant and was not given adequate opportunity to defend himself. As a result, the entire inquiry process violated the principles of natural justice, rendering it invalid. It was also pointed out that the 2nd and 3rd respondents failed to address the applicant's concerns regarding irregularities in the inquiry. Additionally, the order passed by the 2nd respondent was merely a repetition of the 3rd 4 OA No.310/01905 of 2016 respondent's decision, and the Appellate Authority has not applied his mind independently. Therefore, the counsel sought the relief requested in the present OA.
6. The learned counsel relied upon the following judgments of the Hon'ble Apex Court, in support of her contentions:
(i) Uthranjal & Others Vs Kharak Singh (2008 8 SCC 236)
(ii) Nand Kishore Prasad Vs The State of Bihar & Others ( AIR 1978 SC 1277)
(iii) M/s. Bareilly Electricity Supply Co., Ltd Vs The Workmen & Others (AIR 1972 SC 330)
(iv) Yoginath D. Badge Vs State of Maharashtra & another (1999 7 SCC
739)
(v) Roop Singh Negi Vs Punjab National Bank and others (2009 2 SCC
570)
(vi) Divisional Forest Officer, Kothagudem & others Vs Madhusudhan Rao (2008 ALLINCAS 220 SC)
7. Per contra the learned counsel for the respondents by referring to the reply statement vehemently opposed the submissions of the applicant. He mainly contended that the applicant is a habitual absentee and he had been declared as 'Deserter' in several occasions as follows:
(i) He has been under 'Desertion' with effect from 07.01.2023 vide order No. OSD/DE-1/19-61/SSP (L&O)/2002, dated 06.03.2003 and imposed with the punishment of withholding of three increments with 5 OA No.310/01905 of 2016 cumulative effect and the desertion period with effect from 07.01.2003 till his reinstatement was treated as 'Not Spent on Duty' for all purposes vide order dated 19.04.2004
(ii) He was placed under 'Desertion' with effect from 01.10.2006 vide order No. OSD/DE-1/18-
23/SSP(L&O)/2006, dated 08.11.2006 and the desertion period was treated as EOL"
(iii) He was placed under 'Desertion' with effect from 22.10.2009. Later the desertion period was treated as 'Leave of kind due".
8. The Disciplinary Authority reviewed the applicant's case, including materials, statements, and his replies to show cause notices and inquiry findings. Based on this review, the applicant was deemed unfit to remain in the force and was dismissed from service effective immediately. His period of desertion from 01.03.2013 until the dismissal order on 07.03.2016 was treated as "Not Spent on Duty" for all purposes.
9. The applicant, aggrieved by the dismissal, appealed the decision to the Appellate Authority. Upon reviewing the case, the Appellate Authority found that the applicant had a consistent pattern of absence and was declared a "Deserter." The Appellate Authority emphasized that such behavior--characterized by a lack of responsibility and disregard for duty 6 OA No.310/01905 of 2016
--could not be tolerated in a disciplined force. Despite being given multiple opportunities to correct his conduct and improve his attitude, the applicant failed to make any significant changes. His failure to improve his behavior led the Appellate Authority to conclude that he was not fit to remain in service. As a result, the Appellate Authority decided not to interfere with the original dismissal order issued by the Disciplinary Authority. The appeal was thus rejected, and the decision to dismiss the applicant from service was upheld.
10. We have heard the learned counsel for the applicant Ms. Y. Kavitha for M/s. Giridhar & Sai and the learned counsel for the respondents Mr. R. Syed Mustafa, perused the pleadings and the materials placed on record. We have also carefully gone through the judgments relied upon by the respective parties.
11. It is seen that a Memorandum, dated 09.07.2013 was issued against the applicant under Rule 4 of Pondicherry Police Subordinate Services (Discipline and Appeal) Rules read with Rule 14 of CCS (CCA) Rules, 1965 in respect of the misconduct committed by him. The charges framed against him reads as follows:
"That PC 1634 Irisan of PAP 'D' Coy while deploying to the residence of SP (PCR Cell) as Camp Attender duty absented himself unauthorisedly with effect from 7 OA No.310/01905 of 2016 01.03.2013 without submitting any kind of leave application to the Competent Authority. In this regard, three memos dt. 08.03.2013, 16.03.2013 and 24.03.2013 were served upon him personally and by passing on the door of his house. But he neither turned up for duty not submitted any explanation.
Moreover, PC 1634 Irisan has frequently absented himself unauthorisedly from duty on several occasions and subsequently the same were regularized with instruction to be careful in future. But he had failed to correct his attitude despite repeated instruction were given by his Senior Officers on each occasion of his unauthorized absence.
Since the period of absence exceeded more than 21 days, PC 1634 Irisan his name had been struck off from the roll and declared him as "Deserter" with effect from 01.03.2013 as per proviso of Rule 17 (1) of Pondicherry Police Sub- Ordinate Service (Discipline and Appeal) Rules,1968 vide Order No. OSD/DE-1/25-6/SSP (C&I)/2013, dt. 15.04.2013."
12. The applicant submitted his written statement on 19.08.2013 belatedly denying the charge framed against him. As an inquiry was ordered and the Inquiry Officer conducted the inquiry in accordance with the Rules submitted his findings his report, dated 11.05.2015 to the following effect:
"From the evidence of PW1 and PW2 and corroborated by the evidence of PW to PW5, the charge against the Charged Official PC 1634 Irisan now under desertion to the effect that he was absent for more then 21 days from 01.03.2013 to 24.03.2013 and that he has not taken any prior permission or any application/medical certificate to regularizes the leave period and also the reply and explanation submitted does not favour hjis action 8 OA No.310/01905 of 2016 and hence that he was declared as 'Deserted' stand "PROVED"."
13. The Inquiry Officer's report was provided to the applicant, giving him the opportunity to make submissions. On 28.07.2015, the applicant submitted his response, in which he claimed that the entire inquiry was tainted with illegalities and irregularities. However, the reasons he provided for his absence were not convincing. Based on the findings of the Inquiry Officer, the Disciplinary Authority tentatively decided to impose the punishment of dismissal from service and to treat the desertion period as "Not Spent on Duty" for all purposes. Consequently, a show-cause notice was issued to the applicant on 06.10.2015, giving him a chance to file a representation regarding the proposed punishment. In response, the applicant submitted an explanation on 16.11.2015, which was identical to the one provided earlier on 28.07.2015. Upon reviewing the representation and all related materials, the Disciplinary Authority concluded that the applicant's casual and indifferent attitude toward his duties, along with his repeated acts of gross indiscipline, could not be tolerated in a disciplined force. This was the fourth time the applicant had been declared a deserter due to habitual absenteeism. As such, the Disciplinary Authority determined that the applicant was unfit to remain in service and imposed the penalty of removal from service with immediate effect, while treating the desertion period as "Not Spent on Duty" for all purposes. Aggrieved by 9 OA No.310/01905 of 2016 the decision, the applicant filed an appeal on 07.03.2014. After thoroughly reviewing the appeal, the Appellate Authority upheld the Disciplinary Authority's decision to impose the punishment of dismissal.
14. Now, we would like to discuss whether the judgments cited by the applicant are applicable to the present case, as all the cited judgments primarily address irregularities committed by the inquiry officer.
15. The primary argument presented by the applicant's counsel is that a departmental inquiry should not be reduced to a mere formality. According to the counsel, the department must first present evidence against the charged individual and given an opportunity to cross-examine the employer's witnesses. In support of this proposition, the counsel referred to the judgment of the Hon'ble Supreme Court in State of Uttarakhand & Others Vs Kharak Singh (2008) 8 SCC 236). However, in the present case, we do not observe any such deficiencies, and therefore, the cited judgment is not applicable to the applicant.
16. The applicant's counsel further argued that the findings of the inquiry officer are perverse, asserting that suspicion cannot be allowed to substitute for concrete proof. The department, she contended, should have presented valid evidence to support its conclusions. In support of this 10 OA No.310/01905 of 2016 view, she referred to the judgments in Nand Kishore Prasad Vs The State of Bihar & Others (AIR 1978 SC 1277) and Yoginath D. Badge Vs State of Maharashtra & Another (1999) 7 SCC 739. However, upon reviewing the case, we find no irregularities in the inquiry process. Therefore, the aforementioned judgments do not provide assistance to the applicant in this matter.
17. The counsel further referred to the order dated 07.03.2016 of the Disciplinary Authority, which stated that the applicant's past record of misconduct played a significant role in the imposition of the penalty. The learned counsel argued that this reliance on past conduct was inappropriate. To support this argument, she cited the judgment of the Hon'ble Supreme Court in Roop Singh Negi Vs. Punjab National Bank and Others (2009 (2) SCC 570). However, we do not find merit in this contention, as the applicant had previously been declared a deserter due to habitual absenteeism. Such acts of gross indiscipline cannot be tolerated in a disciplined force.
18. Regarding the applicant's argument that the Appellate Authority, without providing any reasons, merely endorsed the findings of the Disciplinary Authority, the learned counsel referred to the decision of the Supreme Court in Divisional Forest Officer, Kothagudem and Others vs. 11 OA No.310/01905 of 2016 Madhusudhan Rao (2008 (3) SCC 469). In its order, the Appellate Authority stated that the applicant, due to his repeated acts of absence, had been declared a "Deserter" on four separate occasions. Despite being given numerous opportunities to improve his behavior, the applicant failed to rectify his conduct. Therefore, the Appellate Authority chose not to interfere with the Disciplinary Authority's decision. In our view, the Appellate Authority exercised independent judgment and upheld the penalty imposed by the Disciplinary Authority. Thus, the judgment cited by the learned counsel is not applicable in this case.
19. The Hon'ble Supreme Court, in a case similar to the applicant's in the present OA, addressed the issue of unauthorized absence of an Armed Forces personnel in Union of India vs. Kulbeer Singh (2019 (13) SCC 20). In this case, the Court held that a punishment order issued by the concerned authority for unauthorized absence of a uniformed personnel was confirmed. The relevant portion of the judgment is extracted as follows:
"7. In so far as the second submission is concerned, it is evident from the statement, which was extracted earlier, that the respondent had admitted his absence for 302 days without leave. The statement contains a justification for the absence. From the record, it is evident that the respondent did not make any effort to apply for extension of his leave. Absence of 302 days from his duty by a member of the Armed Force could not be condoned. We are clearly of the view that the Armed Forces Tribunal was in error in coming to the conclusion that the 12 OA No.310/01905 of 2016 punishment which was imposed was harsh. The only basis for the finding was that the respondent had put in twelve years of service. This was all the more a reason why any responsible member of the Armed Force should not have absented from service without permission. The Tribunal clearly misdirected itself in law in coming to the conclusion that the punishment of dismissal from service was harsh and disproportionate.
8. We accordingly allow the appeal and set aside the impugned judgment and order of the Armed Forces Tribunal dated 21-8- 2015 in OA No. 483 of 2012 filed by the respondent shall stand dismissed. However, there shall be no order as to costs."
20. Habitual absenteeism is gross violation of discipline as held by the Hon'ble Madras High Court in the case of S. Rangarajan Vs The, Additional Director General, in WA.No.1500 of 2018, (order dated 18 December, 2018) We extract the relevant portion of the judgment below:
11.In Sri Bhagawan Lal Arya Vs. Commissioner of Police, Delhi and others reported in 2004 (4) SCC 560, relied on the appellant therein was absent for a period two months, 7 days and 17 hours on medical grounds. During the period, he remained under treatment in Government Hospital. Since appellant had applied for leave on medical grounds supported with medical certificates from the competent Medical Officer, the appellate authority passed orders sanctioning leave without pay for the period of illness. However, for the alleged misconduct of absence, disciplinary action was initiated and ultimately, he was removed from service. Considering the facts and circumstances of the said case, the Hon'ble Supreme Court held that the disciplinary authority erred in inflicting a penalty of removal from service and hence set aside the same.
However, in the case on hand, the past record of service shows habitual absenteeism. Though the appellate authority has dismissed the appellant from service, later on the same has been modified as compulsory retirement, for the reason stated supra.Sri Bhagawan Lal Arya's case (cited supra) is a solitary incident case and it would not apply to the present case. 13 OA No.310/01905 of 2016
12. Habitual absenteeism is a gross violation of discipline, as held in Burn & Co. Ltd. and Ors. Vs. Their Employees reported in AIR 1959 SC 529. In the said case, an employee, who absented without leave or permission, following a domestic enquiry was dismissed from service. The Industrial Tribunal directed re-instatement. When the matter was adjudicated before the Hon'ble Supreme Court, it was held that absence of a workman without permission and without any leave application for the same, amounts to gross violation of discipline, entailing dismissal from service. The Hon'ble Supreme Court further held that if such a workman is dismissed by his employer, Industrial Tribunal should not order for reinstatement. The Hon'ble Apex Court held that, "Where a workman is almost in the habit of loitering outside his place of work without the permission of his departmental head and does not desist from doing so even though warned, his services can be dispensed with. In such a case, it cannot be said that the employer was actuated by any improper motive to victimise him for his Union activities."
13. Reverting to the case, from the material on record, it could be seen that though the appellant has been inflicted with many penalties, absenteeism, there is no change.
21. Even in the absence of a specific statutory rule, it remains within the discretion of the Disciplinary Authority to consider the past service record of the individual when determining the appropriate penalty. Such consideration serves to strengthen and provide additional justification for the disciplinary decision. If the charge itself warrants a major penalty, independent of any prior misconduct, the disciplinary authority is fully entitled to impose a penalty that aligns with the severity of the current violation, without needing to reference past conduct. Furthermore, with the Constitutional amendment removing the delinquent's right to further representation regarding the penalty, the Disciplinary Authority's reliance 14 OA No.310/01905 of 2016 on the individual's past record--if it is factored in--does not invalidate the disciplinary proceedings or the penalty imposed. There is no breach of the principles of natural justice in such cases.
22. In light of the above, the penalty imposed on the applicant is upheld, as it is justified by the applicant's consistent pattern of gross absenteeism, a behavior that is particularly intolerable in a disciplined force. The applicant has failed to establish any grounds that would warrant a different outcome, and thus, the application is dismissed. No costs are awarded.
(SANGAM NARAIN SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
28 .01.2025
mas