Central Administrative Tribunal - Delhi
Ex.Constable Bhupinder Singh vs Government Of Nct Of Delhi on 12 November, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No. 676/2006 New Delhi, this the 12th day of November, 2008 HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Ex.Constable Bhupinder Singh No.3012/DAP, now 3727/DAP, S/o Shri Himat Singh R/o Village & P.O. - Jharsa District, Gurgaon, Haryana. Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Government of NCT of Delhi Through Its Secretary, I.P. Estate, New Delhi. 2. Jt. Commissioner of Police, Armed Police, New Police Lines, Kingsway Camp, Delhi. 3. Deputy Commissioner of Police, IVth Ban., DAP, Delhi. ..Respondents By Advocate: Mrs. P.K. Gupta. O R D E R
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 26.3.2004 whereby he has been dismissed from service and order dated 27.4.2005 whereby his appeal has been rejected. It is submitted by counsel for the applicant that though in the summary of allegation and findings recorded by the Inquiry Officer as well as in the order passed by the authorities, previous bad record has been referred to but the same has not been proved in the enquiry, therefore, it vitiates the orders passed by the respondents. He also submitted that applicant had given his medical certificates along with the appeal to show that he was unwell, therefore, it cannot be stated that he was unauthorizedly absent or had not attended the duty willfully. On the contrary, there are mitigating circumstances due to which he could not attend the office, therefore, the extreme punishment of dismissal is liable to be quashed and set aside.
2. Respondents, on the other hand, have submitted that while posted in 3rd Bn. DAP, applicant was proceeded against departmentally vide order dated 3.9.2001 as he had absented himself from Government duties on 17 occasions with effect from 3.9.1999 to 27.5.2001 for a total 279 days. 10 absentee notices were sent at his residence directing him to resume his duty at once. Absentee notices dated 26.11.1999 and 1.2.2001 were received by the applicant while absentee notice dated 18.10.2000 was received by his brother Sunil Dalal against proper receipt yet he did not join the duties nor gave any valid reasons for not attending the office. Moreover, perusal of the previous record shows that he had earlier also absented on 58 different occasions for which he was awarded a major/minor punishment but in spite of it he did not mend himself which shows that applicant is a habitual absentee and an incorrigible type of person. During the pendency of above departmental enquiry, applicant was removed from service in another DE for 77 days of unauthorized absence vide order dated 10.6.2002, therefore, this DE was kept in abeyance. However, subsequently applicant was reinstated in service by the appellate authority vide order dated 8.1.2003 whereupon the present DE was reopened.
3. The E.O. submitted his findings on 30.9.2003 holding the charges stand proved against the applicant beyond any shadow of doubt. Copy of findings was supplied to the applicant at his residence as he was running absent since 28.4.2003 with a direction to submit his written reply. His reply was due on 10.1.2004 but he did not even submit any reply. The applicant was given yet another opportunity to submit his reply informing him that no further opportunity would be given to him in case he fails to submit his reply and was also permitted to appear in the Orderly Room to explain his position. The said notice was also received by the applicant on 28.1.2004 but in spite of it, he did not bother to submit his reply. Accordingly, the disciplinary authority, after carefully considering the findings submitted by the EO, statements of PWs and other relevant records available on DE file, awarded the punishment of dismissal from service on 26.3.2004. The period of 279 days, 15 hours and 55 minutes was decided as period not spent on duty. Being aggrieved, applicant filed his appeal which too was rejected by a speaking order dated 27.4.2005.
4. Learned counsel for the respondents have submitted if applicant was sick, he ought to have got his leave sanctioned from the competent authority. He has no right to remain absent willfully and unauthorisedly without any intimation or information to the department. Being a disciplined force, unauthorized absence is a gravest misconduct. Moreover, the record shows that applicant has not improved in spite of major and minor punishments given to him earlier. The applicant is facing two other DEs for absence for 54 days 20 hours and 45 minutes and 42 days 05 hours and 35 minutes. However, since applicant has been dismissed in this DE, those DEs have been held in abeyance. All this clearly shows that he is a habitual absentee and incorrigible type of person, therefore, punishment of dismissal is commensurate with the misconduct committed by the applicant.
5. During the DE also sufficient opportunities were given to the applicant to attend the DE though he attended DE initially but did not join the DE proceedings after some time despite service of notice on 21.5.2003 and 29.5.2003 nor did he submit any medical certificate to prove his sickness. In these circumstances, applicant was rightly proceeded ex-parte in the DE.
6. Respondents have submitted that since absence of applicant was duly proved by PW-1 and PW-2 supported by documents, therefore, this case calls for no interference. The same may kindly be dismissed with cost.
7. Applicant has reiterated his stand in the rejoinder.
8. We have heard both the counsel and perused the pleadings as well.
9. Applicant was served with the summary of allegation on 25.10.2001 along with memo of evidence, list of witnesses and list of documents to be relied upon in the enquiry. The allegations against the applicant were as follows:-
It is alleged against Ct. Bhupinder Singh 3132/DAP, 2559/DAP(Now 3012/DAP), that while posted in 3rd Bn. DAP and IVth DAP he absented himself from duty on the following occasions without any permission from the competent authority and intimation to the Dept. Sl.No. D.D. Date And D.D. No. And Absence Period Date Of Date Of Days Hours Mts.
Absent Arrival
1. 21 3.9.99 17 4.9.99 - 21 -
2. 5 7.9.99 24 7.9.99 - 7 -
3. 21 28.8.99 41 28.9.99 - - 55
4. 67 30.9.99 41 4.10.99 3 18 55
5. 26 13.10.99 37 14.10.99 1 3 45
6. 66 14.10.99 32 19.10.99 4 21 25
7. 60 21.10.99 61 22.10.99 - 23 30
8. 47 26.10.99 50 29.10.99 3 2 15
9. 28 1.11.99 54 10.12.99 39 6 20
10. 48 11.9.2K 52 15.9.2K 4 11 5
11. 32 7.10.2K 39 8.10.2K 1 - 55
12. 60 10.10.2K 55 31.10.2K 20 17 20
13. 24B 2.11.2K 40B 23.2.01 114 2 35
14. 5B 24.2.01 28B 11.4.01 46 5 15
15. 6B 12.4.01 40B 15.5.01 33 - -
16. 53 19.5.01 29 20.5.01 2 21 15
17. 14 27.5.01 26 30.5.01 2 21 30
Therefore, the following absentee notices were sent at his residence from the office of DCP/3rd Bn. DAP and 4th Bn. DAP Delhi vide which the Ct. was directed to resume his duty at once otherwise the departmental action would be taken against him.
Sl.No. ABSENTEE NOTICE NO . DATE
1. 9563-66/ASIP/4th BN DAP 3.11.99
2. 9914-17/ASIP/4th BN DAP 26.11.99
3. 10253-54/ASIP/4th BN. DAP 9.12.99
4. 9162-65/ASIP/4th BN. DAP 18.10.2K
5. 13181-85/ASIP/3rd BN DAP 9.11.2K
6. 15374/ASIP/3rd BN DAP 19.12.2K
7. 82-86/ASIP/3rd BN DAP 18.1.01
8. 1202-07/ASIP/3rd BN DAP 1.2.01
9. 2488-92/ASIP/3rd BN DAP 2.3.01
10. 5140-43/ASIP/3rd BN DAP 17.4.01
Besides on the perusal of his previous record it is found that he had already absented himself on 58 different occasions for which he was awarded major/minor punishments but he did not mend himself. It seems that he is a habitual absentee and incorrigible type of person.
The above act of unauthorized and willful absence in a disciplined force on the part of Constable Bhupinder Singh, No.3132/DAP (now 3012/DAP) is highly reprehensible and untenable rendering him liable for departmental action under the Delhi Police (Punishment and Appeal) Rules, 1980.
10. In the findings submitted by the EO, it is clearly mentioned that contents of the summary of allegations were read over and the applicant had understood the contents thereof and he admitted his guilt. Since applicant had admitted his guilt there was no need to hold the enquiry. Reference may be made to the judgment of Honble Supreme Court in the case of Dharmarathamakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution Vs. Educational Appellate Tribunal and Another reported in 1997 (7) SCC 332 wherein it was held as follows:-
The contention of learned counsel for the respondent is confined that there was no enquiry in terms of Section 6 of the said Act. There is no submission of any defence on merit. Even before us when we granted learned counsel an opportunity to give any prima facie or plausible explanations on record to defend her actions, nothing could be placed before us. Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where statute require. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M. Phil course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where facts are almost admitted, the case reveals itself and is apparent on the face of record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with termination order.
Similarly even in the present case also not only applicant had admitted the guilt but he did not put up any defence before the EO. Even before us no evidence of defence has been placed, therefore, this case is fully covered by above judgment. In these circumstances there was no need to hold the enquiry yet in the enquiry as many as 9 PWs were examined. Perusal of the statements of PW-1 and PW-2 show that absence as mentioned in the summary of allegations was duly proved by the said witnesses. The applicant was given opportunity to cross-examine the witnesses but he did not cross-examine the PWs even though he was present when PW-1 to PW-7 were examined in the enquiry meaning thereby that statements made by the PWs were not even controverted or disputed by the applicant which itself shows he had admitted the misconduct. Even this was proved that absentee notice were sent to the applicant. It is further relevant to note that after PW-7 was examined, applicant was removed from service in another DE. Accordingly, the present DE was kept in abeyance. Subsequently the removal order was set aside by the appellate authority and the applicant was reinstated, therefore, the present DE was restored vide order dated 2.4.2003. At this stage again EO has specifically noted that three summons were sent to the applicant to attend the DE on different dates at his native village because again delinquent was running absent but applicant did not attend the DE in spite of receipt of summons. Accordingly, the matter was placed before the disciplinary authority. In these circumstances Proceedings were allowed to be completed ex-parte against the applicant from this stage.
11. From above it is clear that full opportunity was given to the applicant to defend himself in the enquiry but applicant did not controvert any of the statements made by the PWs in his presence regarding his willful absence. Moreover, the previous absentee record showed that applicant had absented unauthorisedly on 58 different occasions for which minor/major punishments were granted to him but he did not improve in spite of those punishments which showed that applicant was an incorrigible and habitual absentee. It is also relevant to note that neither applicant produced any defence witness (hereinafter referred to as DW) even though he was given an opportunity nor produced any medical certificate to show he was sick, as is being alleged now. It is thus clear that full opportunity was given to the applicant to defend himself and E.O. rightly concluded that the charge against him was proved.
12. It is further relevant to note that after the applicant was found guilty of the charge, copy of the report was sent to the applicant for giving him opportunity to file his representation but even at this stage also neither applicant gave any representation nor he appeared before the authorities in Orderly Room nor submitted any medical certificates nor disputed his previous bad record. Thus it was clear that applicant did not have any defence, therefore, disciplinary authority rightly imposed punishment of dismissal on applicant. In these circumstances, any prudent person would have come to the same conclusion that applicant is not at all interested in the job, therefore, the decision arrived at by the disciplinary authority calls for no interference.
13. Counsel for the applicant strenuously argued that the previous bad record of the applicant was not proved in the enquiry. However, question of proving a fact would arise only if it is controverted or disputed by the delinquent. In the instant case, in summary of allegation itself, it was specifically stated that applicant had absented himself willfully on 58 occasions earlier also apart from the present absence as mentioned in the summary of allegation, for which he was awarded minor/major punishments but in spite of this, applicant had not improved which shows he is a habitual absentee. As we have already noticed above applicant did not controvert this allegation at all nor produced any DW in the enquiry to show to the contrary. Even in the OA applicant has not disputed this fact that he had not absented earlier on 58 occasions for which minor/major punishment was given to him. Moreover, EO had specifically noted that the contents of summary of allegation were admitted by the applicant, therefore, in these circumstances, we find no merit in the contention raised by the counsel for applicant that previous record ought to have been proved, therefore, this contention is rejected.
14. Counsel for the applicant further contended that applicant had submitted medical certificates to the appellate authority along with his appeal, therefore, those certificates should have been considered. It goes without saying that if applicant was sick in the year 1999, 2000 or 2001, he ought to have given the medical certificates to the authorities at that relevant time or should have produced them at least before the Enquiry Officer when charge was being enquired into. No purpose is served by giving medical certificates to the appellate authority after he was dismissed from service specially when he had been given full opportunity to defend himself in the departmental enquiry which was not availed of by the applicant. Disciplinary authority has passed a detailed and reasoned order which calls for no interference as willful absence from duties in spite of minor/major punishment for the same charge earlier, is definitely one of the gravest misconduct in a disciplined force like Delhi Police. Even otherwise appellate authority has noted in the order that the medical papers submitted by the applicant before the appellate authority were for the subsequent period while applicant had been punished for the unauthorized absence during the period 1999 to 2001. Applicant has not even controverted this finding in the OA, therefore, no fault can be found in the appellate order as well.
15. In view of above, we do not think the punishment given to the applicant can be termed as disproportionate nor can it be said to have shocked our conscience. On the contrary we would agree with the respondents that no purpose would be served by keeping such person in service, who is not interested in performing the duties and is habitual absentee and incorrigible type of person.
16. Counsel for the applicant relied on the judgment of the High Court of Delhi in CW 4715/2001. However, each case has to be decided on the given facts and circumstances. In the said case delinquent had not admitted the guilt whereas in the instant case applicant had admitted his guilt so the said judgment cannot advance the case of applicant. Law is well settled by now that once charge is proved then what punishment should be given is to be decided by the authorities concerned and courts cannot sit in appeal over the decision itself. In judicial review court can only see whether there was any irregularity in the decision making process.
17. In Chairman and Managing Director, United Commercial Bank an Others Vs. P.C. Kakkar reported in 2003 (4) SCC 364 Honble Supreme Court held as follows:-
It is settled that the is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of Wednesbury principle the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision - making process and not the decision.
Therefore, unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference.
18. In State of Rajasthan and Another Vs. Mohammed Ayub Naz reported in JT 2006 (1) SC 162 the issue before Honble Supreme Court was that once charge of unauthorised absence was admitted by the respondents and proved in the enquiry whether High Court was right in reducing the punishment of dismissal to compulsory retirement with all retrial benefits on the ground that employee had put in 18 years of service when no satisfactory explanation for 3 years absence was given by the respondent.
19. Honble Supreme Court held 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, therefore, Government of Rajasthan inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a government servant remains willfully absent for a period exceeding one month and if the charge of willful 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 willfully absent for 3 years without intimation to the Government.
20. It would also be relevant to quote from the judgment of B.C. Chaturvedi Vs. U.O.I. and Others reported in AIR 1996 SC 484 wherein it was held as under:-
When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the Appellate Authority has coextensive power to reappreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.
21. Similarly in 2005 (7) SCC 338 in the case of V. Ramana Vs. S.P. SRTC and Others Honble Supreme Court reiterated as follows:-
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision".
22. From above judgments it is clear that scope of judicial review in disciplinary cases is limited.
23. In the instant case since we find no irregularity has been committed in the enquiry. On the contrary, full opportunity was given to the applicant at every stage but he did not avail it, the case calls for no interference.
24. It would also be relevant to refer to the judgment of Honble Supreme Court in the case of Government of A.P. and Others Vs. Mohd. Taher Ali reported in 2007 (8) SCC 656. In the said case respondent absented unauthorisedly without permission while he was detailed for election duty for security arrangements. He did not report. A DE was ordered. Respondent did not file any written reply of defence, nor filed reply against the report submitted by the EO. In these circumstances disciplinary authority concluded respondent therein had no explanation and this was not the solitary incident. He had earlier also deserted the duty on couple of occasions. Accordingly, respondent was compulsorily retired from service. Punishment was challenged before the Tribunal. Tribunal though accepted the findings but remitted the matter back for reconsideration on the question of punishment. Writ Petition was dismissed. Matter was carried to the Honble Supreme Court. The contention raised by respondents was that the disciplinary authority while passing the order has taken into consideration the earlier absence of the respondent from the duty. He submitted that this could not have been taken into consideration as the respondent was not aware about these incidents and those were not the part of the charges levelled against him.
25. However, Honble Supreme Court observed as follows:-
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.
The order passed by Tribunal and Honble High Court was set aside and penalty imposed was upheld.
26. In our view the case in hand is on a better footing because his earlier absence was in fact part of the charge itself and applicant did not dispute this aspect either before the authorities or even before us, therefore, we find no merit in this OA is accordingly dismissed. No order as to costs.
(MRS. MEERA CHHIBBER) (L.K. JOSHI)
MEMBER (J) VICE CHAIRMAN (A)
Rakesh