Central Administrative Tribunal - Delhi
Kipral Singh vs Union Of India on 11 October, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.1103 of 2010 New Delhi this the 11th day of October, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Kipral Singh, aged about 48 years, Ex.Head Constable NO.229/DAP-1st Bn. S/o Late Sh. Dal Chand Sharma, R/o H.No.K-3-3050, Shastri Nagar, Meerut (U.P.). .... Applicant ( By Advocate Dr. Kanwal Sapra ) VERSUS 1. Union of India Through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Special Commissioner of Police, Police Head Quarters, M.S.O. Building, Indraprastha Estate, Delhi. 3. Dy. Commissioner of Police, Ist Bn. Delhi Armed Police, New Police Lines, Kingsway Camp, Delhi. .. Respondents ( By Advocate Mrs. Renu George ) O R D E R Dr. Dharam Paul Sharma, Member (J) :
This Application filed by the applicant an Ex.Head Constable under Section 19 of the Administrative Tribunals Act, 1985, is directed against the following orders :-
(i) Office Order No.1751-65/HAP/1st Bn. DAP dated 27.06.2007 whereby DCP 1st Bn. Ordered to hold D.E. against the applicant as per Annexure A.
(ii) Order No.58-132/HAP-1st Bn. DAP, dated 02.01.2009 passed by DCP/1st Bn. DAP Respondent no.3 i.e. the disciplinary authority whereby punishment of removal from service was awarded as per Annexure B.
(iii) Order No.F-XVI/II/2009/639-42/P. Sec. / Spl. C.P./AP, dated 23.11.2009 passed by Respondent no.2 whereby the appeal has been rejected as per Annexure-C.
2. The applicant prays for quashing and setting aside of these orders with consequential benefits.
3. The applicant was enlisted in Delhi Police as Constable on 15.1.1982 and was promoted to the rank of Head Constable in the year 2006. The departmental inquiry was ordered by DCP 1st Bn., respondent no.3, on 27.6.2007 for remaining absence for different occasions in different years from 2001-2006 while posed in different units of Delhi Police. In the said order, it was alleged that the acts mentioned therein on the part of the applicant amounted to gross negligence, carelessness, misconduct and dereliction in the discharge of his official duties, habitual absentee and unbecoming of a police officer, which rendered him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980. The inquiry officer returned the findings that the charges levelled against the applicant stood proved. The disciplinary authority tentatively agreed with the findings of the inquiry officer. A copy of the inquiry report was served upon the applicant to unable him to make a representation thereagainst but he did not submit any representation. He was called in OR. The disciplinary authority awarded the penalty of removal from service vide his order dated 2.1.1999, a copy of which is at Annexure-B, awarding the penalty as aforesaid. The disciplinary authority has observed as follows :-
In a disciplinary force absence willfully and un-authorisedly, if taken leniently it will not only encourage others to follow suit but it will also destroy the whole fabric of discipline. It is not a question of taking the things leniently on simple saying that on human ground a sympathetic view may be taken but a question remains whether that person is actually repenting for the misconduct and will not repeat it in future. Apart from it un-authorised absence from duty also manifest lack of devotion to duty. It shows that he is incorrigible type of person and is totally unfit for the department. There seems to be no indication of his improving his behaviors in the future. If fact his misconduct is very grave.
4. The applicant preferred an appeal against the aforesaid order of penalty, which too was rejected vide order dated 23.11.2009. Feeling aggrieved, the applicant has filed the present Application wherein the impugned orders have been challenged on as many as 61 grounds mentioned in para 5 of the Application. Main thrust of the applicants challenge has been that the impugned orders have been passed without application of mind in a mechanical and arbitrary manner without considering the points raised by the applicant. It has further been alleged that the absence of the applicant was not willful. The medical papers adduced by the applicant were not duly considered. The authority rejecting his appeal was not competent to do so. Previous absence was taken into account. The applicant has also challenged the validity of Rule 19 (5) of CCS (Leave) Rules without claiming any relief in the relief clause in respect thereto. The inquiry was initiated belatedly and the punishment awarded is too harsh. In fact, without having due regard to the limitation of judicial review in the disciplinary matters, the applicant seeks to challenge the orders on facts so as to have re-hearing of the entire matter afresh as if we have been the appellate authority over the action of the respondents.
5. The respondents have filed their counter affidavit opposing the applicants claim. Having set out in details the conduct of the applicant in remaining absent habitually, which has led to forfeiture of 10 years of his service, the inquiry has been properly conducted in accordance with the applicable rules. There is no infraction of any provisions of law in this regard. The applicant has been accorded due opportunity to defend himself. The authorities concerned have given due consideration to all the relevant aspect of the matter and passed the impugned orders with due application of mind to all the relevant facts and circumstances of the case and the same is not open to any objection in law.
6. At the hearing the learned counsel for the applicant emphasized that the absence of the applicant was not willful. The applicant has submitted medical certificates but the respondents have not taken any action on the medical certificates given by the applicant. Neither the medical certificates have been rejected nor any second opinion has been obtained. The medical officer was not examined. It has further been submitted by the applicants counsel that there has been discrimination in awarding the punishments, as so many other absentees have been left with warning whereas the applicant has been removed from service.
7. In view of the applicants submissions, which were too general and seeking re-hearing by us on facts, the applicants counsel was asked to state the points on which the impugned orders are being challenged. From whatever he has submitted, the following points emerged for consideration: (1) the appellate authority was not competent; (2) medical papers submitted by the applicant were not duly considered; (3) there was delay in initiating the inquiry; (4) there was no indication that the medical papers of a private doctor submitted by the applicant are not to be relied upon; (5) Inquiry Officer acted as prosecutor; (6) there was malafide and conspiracy to remove the applicant from service; (7) previous record was taken into consideration which amounted to double jeopardy; (8) there was bias; (9) there was discrimination; & (10) the punishment is disproportionate. The applicants counsel summed up his arguments by stating that the absence of the applicant was not willful and there was double jeopardy since for the past acts of absence, the applicant has already been punished, for which he cannot be punished again in these proceedings. There was discrimination and the punishment awarded was harsh. The appellate order was not even speaking. However, he could not substantiate these averments by adducing supporting evidence.
8. The learned counsel for the respondents on the other hand reiterated the averments made in the counter reply. The learned counsel for the respondents, however, drew our attention to page 97 of the paperbook wherein the inquiry officer has recorded as follows:-
HC Kirpal Singh was asked repeatedly to submit the list of DWs or his final defence statement but he did not submit any DWs and his defence statement. He only stated that at the time of arrival from absence he has already submitted his statement and Medical papers. His statement and medical papers have been examined in which he has stated that he was ill and was under the treatment of doctor Ashok Garg M.L. Sharma Hospital, Meerut, U.P. a private practitioner. Doctor Ashok Garg has prescribed in his medical prescription that Kirpal Singh was suffering from Hepatitis and remained under his treatment and he advised him rest. The medical papers cant be relied upon as these are from a private medical practitioner the delinquent HC has also not informed the Deptt. about his illness and did not permit his medical test. Time and again has submitted the medical papers of the same doctor. In the absence of 163 days and 18 hours he has alleged that his mother was ill so he could not attend his duty. This is also not an excuse for absenting from his duty.
After examining the PWs, the statement of the defaulter and the medical papers enclosed with the file, it is revealed that HC Kirpal Singh is a habitual absentee and incorrigible type of person as he has frequently absented himself from duty unauthorizedly and willfully. He has remained absent for 497 days 22 hours and 40 minutes unauthorizedly and willfully. Which is a negligence and carelessness on the part of the defaulter.
9. We have given our careful considerations to the respective submissions made by both the parties. We have also carefully perused the records of the case as well as the relevant records, which were made available by the respondents during the course of the inquiry. The applicant has also submitted a copy of Manual-6 containing the statements of categories of documents that has been held by itself under control and extracts of Punjab Police Rules without indicating in any manner as to for what purpose these are being submitted. Nor has any particular point been specified on which the applicants counsel seeks to rely in support of the applicants claim.
10. Having bestowed our careful consideration, we find that what the applicant has contended is that the order of penalty is against the fact and evidence on record and the appellate authority has not appreciated this correctly. In other words, the applicant wants us to re-appraise the evidence which we cannot do so in view of the limited scope of judicial review in the disciplinary matters. It is not a case of no evidence. Nor can the respondents action be viewed as perverse and arbitrary and based on no evidence. It is a well settled proposition of law that courts will not re-appraise the evidence except in case of no evidence in exercise of powers of judicial review.
11. The applicants contention that the appellate authority was not competent to pass the orders on the applicants appeal is devoid of force. The plea of the applicant is whereas appeal was to be filed to the Joint Commissioner of Police, the appeal has in fact been disposed of by Special Commissioner of Police. The later being the superior officer to the Joint Commissioner of Police, he cannot said to be lacking competency unless the appellate authority is designated by designation in the Rules.
12. On perusal of the report of the inquiry officer, it is seen that the applicant has neither adduced any witness in his defence nor submitted any defence statement. The applicant has neither adduced any material particulars indicating any discrimination, bias, malafide or conspiracy to punish him nor there is anything to indicate that the Inquiry Officer has acted as a prosecutor. The applicants contention that previous records taken into consideration amounted to double jeopardy is misconceived for the applicant was proceeded against for being a habitual absentee and this can be decided keeping in view the over all conduct of the applicant in the service. As regards, medical certificates on related aspect, the same has been duly considered by the inquiry officer. The disciplinary authority has also given reasons for awarding the penalty of removal from service as referred to above. In this regard, it would be appropriate to refer to the following observations of the Honble Supreme Court in the case of State of Punjab vs. Bakhshish Singh, AIR 1997 SC 2696,:-
5. It is settled legal position that it is for the disciplinary authority to pass appropriate punishment; the civil Court cannot substitute its own view to that of the disciplinary as well as appellate authority on the nature of the punishment to be imposed upon the delinquent officer. In view of the finding of the appellate Court that it is a grave misconduct, the appellate Court ought not to have interfered with the decree of the trial Court. The High Court dismissed it without application of the mind and ignoring the settled legal principles.
13. In the facts and circumstances and for the reasons stated above, we do not find any merit in this Application and the same is accordingly dismissed. No order as to costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey)
Member (J) Member (A)
/ravi/