Central Administrative Tribunal - Delhi
Asi Sardar Singh vs The Commissioner Of Police on 4 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 949/2010 NEW DELHI THIS THE 4th DAY OF JULY, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) ASI Sardar Singh S/o Shri Sadhuri Lal, R/o Police Line, PBG, Rashtrapati Bhawan (Security). Applicant. (By Advocate Shri Sachin Chauhan) Versus 1. The Commissioner of Police Police Headquarters, IP Estate, New Delhi. 2. The Joint Commissioner of Police RB, Bhawan, Through PHQ, MSO Building, IP Estate, New Delhi. 3. The Deputy Commissioner of Police RB, Bhawan, Through PHQ, MSO Building, IP Estate, New Delhi. Respondents. (By Advocate: Shri Amit Anand) ORDER
Shri G. George Paracken:
The applicant is aggrieved by the Annexure A-3 findings of the Inquiry Officer dated 03.05.2008, the Annexure A-1 order dated 06.10.2008 whereby the disciplinary authority has imposed the punishment of forfeiture of one year of approved service temporarily and the Annexure A-2 appellate authoritys order dated 04.11.2009 whereby his appeal was rejected.
2. The applicant while working as an ASI (ad hoc) was served with the following summary of allegations:
It is alleged that ASI Sardar Singh No.1061/RB (PIS No.28850252) while posted at R.P.Bhawan proceeded on 5+4 days CL vide DD No.39 dated 12.10.2007 and was due to be back on 22.10.2007 but he did not turn up. He was marked absent vide DD No.45 dated 22.10.2007, PPG Lines, R.P.Bhawan, New Delhi. An absentee notice No.8418-20/Estt.-DCP/RB, dated 31.10.2007 was issued to him with the direction to resume his duty at once or to report to CMO Distt. Alwar, Rajasthan, in case of being ill, for second medical examination/opinion. HC Jag Mal No.798/RB was also deputed to serve the notice who visited his native village on 11.11.2007 where Hira Singh Meena s/o Shri Ram Kishan Meena son of his brother and his wife were found present. They informed HC Jag Mal No.798/RB special messenger that ASI Sardar Singh has already gone to Delhi to join his duty. But ASI Sardar Singh No.1061/RB neither resumed his duty nor reported to CMO/Distt Alwar, Rajasthan for re-medical examination despite clear instructions given through absentee notice and has been running absent from duty willfully and unauthorizedly in violation of CCS (Leave) Rules, 1972 and S.O.No.111.
3. The Inquiry Officer after a detailed inquiry in the matter, vide his Annexure A-3 findings dated 03.05.2008, came to the conclusion that the aforesaid allegations against the applicant were proved and had absented himself from duty for a period of 118 days, 2 hours and 30 minutes willfully and unauthorisedly in violation of the CCS (Leave) Rules, 1972 and SO No. 111. The discussion of evidence in this regard was as under:
DISCUSSION OF EVIDENCE After going through the statements of PWs, DWs and defence written statement of defaulter ASI Sardar Singh No.1061/RB, the following points have surfaced:-
1. That all the PWs have corroborated the prosecuting story:
2. PW-1 HC Kiran Pal Singh No.479/OD has proved that ASI Sardar Singh proceeded on 5+4 days C/L vide DD No.39 dated 12.10.2007 and he was due to be back on duty on 22.10.2007 but he did not turn up. ASI Sardar Singh was marked absent vide DD No.45 dated 22.10.2007.
3. PW-2 HC Jagmal Singh No.789/RB has proved that he was deputed to serve a copy of absentee notice No.8418/Estt.DCP/RB dated 31.10.2007 to ASI Sardar Singh No.1061/RB and he visited his native village where Shri Hira Singh Meena nephew of ASI Sardar Singh No.1061/RB and wife of ASI Sardar Singh were found present. They informed him that ASI Sardar Singh has already gone to Delhi to join his duty. He has also proved the contents of his report dated 12.11.2007 regarding service of absentee notice at the residence of ASI Sardar Singh.
4. PW-3 Ct. Atam Dev No.167/RB BHM/Chitha Munshi has also prove that ASI Sardar Singh No.1061/RB while posted at R.P. Bhawan proceeded on 5+4 days CL vide DD No.39 dated 12.10.2007 and was due to be back on 22.10.2007 but he did not turn up. He was marked absent vide DD No.45 dated 22.10.2007 PPG Lines, R.P.Bhawan.
5. PW-4 ASI Shanti Prakash has also proved the previous absentee rcord of ASI Sardar Singh No.1061/RB and the contents of absentee notice No.8418/Estt.DCP/RB dated 31.10.2007. He has also proved the posting of the defaulter ASI Sardar Singh No.1061/RB at R.P.Bhawan.
6. DW-1 Shri Rohtas Meena S/o ASI Sardar Singh has stated that he had informed duty officer/RB dated 31.10.2007. he has also proved the posting of the defaulter ASI Sardar Singh has already been marked absent.
7. DW-2 Shri Heera Singh has stated that he was not given any absentee notice in respect of ASI Sardar Singh. He is telling a lie as his signature is available on record which clearly proves that the absentee notice was received against his proper signature.
Howsoever, the pleas taken by the defaulter in his written defence statement are not sufficient to disprove the testimony of the presentation of prosecution witnesses and documentary evidences brought on record. The statement of DWs produced by defaulter in his defence does not in any way undermine the prosecution evidence brought forth during this enquiry. The first contention raised by the defaulter ASI Sardar Singh in his defence statement that he was ill and unable to join his duties doesnt sound convincing as if he had taken medical treatment from Ayurvidic Hospital, Prithvi Pura, District Alwar then it was not difficult for him to undergo for second medical examination at CMO/District Alwar, which is at the same distance but the defaulter ASI Sardar Singh did not bother to do so. This shows his casual attitude towards govt. duty. This also shows his fear that once he came to the CMO/District Alwar, for second medical examination; he would put to him in difficulties and would expose his lie of being ill. This only proves that the defaulter ASI Sardar Singh has not been suffering from any ailment otherwise he should have readily agreed for second medical examination by CMO/District Alwar, had he actually been ill. The absentee notice was served upon Shri Heera Singh and he was required to attend the CMO/District Alwar, for second medical examination but he did not do so deliberately.
His second contention that his son had informed the duty officer twice but his information was not lodged is also baseless as his son was also informed by the duty officer to send his father to join the duty but ASI Sardar Singh did not join his duties deliberately and willfully.
His third contention is not tenable as he should have send the medical papers to the competent authority for availing medical rest at home but he didnt do so. This only shows his careless attitude towards government duty.
His fourth contention that the absentee notice was not handed over to him in person or to anyone of his family member is quite baseless. The absentee notice was served to his nephew Heera Lal by PW-2 HC Jagmal Singh against his proper receipt, which is available on record. Hence the contention of the defaulter ASI is not convincing.
His fifth contention he has informed the department from time to time doesnt hold ground as he has not sent any medical papers to the competent authority for availing medical rest at home. Moreover, advise from a doctor for medical rest doesnt entitle a government servant to avail it on its own, the same has to be permitted by the competent authority but the defaulter ASI has not do so.
His six contention that his absence is fully covered by medical certificates doesnt hold ground as he has not obtained necessary approval of the competent authority to avail the medical rest at home. This only proves that the defaulter ASI Sardar Singh was not suffering from any ailment, otherwise he should have got permitted all the medical certificates from the competent authority.
His seventh contention can be accepted that he was mentally upset due to the involvement/arrest of his son in case FIR No.221/2007 u/s 143/324/307/302 IPC PS Rajgarh, Alwar. This was the reason of his auauthorised absence but he has submitted false medical certificates to cover his wilfull and unauthorized absence of 118 days, which is in violation of CCS (Leave) Rules, 1972 and SO No.11.
4. The disciplinary authority in his Annexure A-1 order dated 06.10.2008 agreed with the aforesaid findings of the Inquiry Officer and imposed the punishment of forfeiture of one year approved service temporarily. The appellate authority also vide Annexure A-2 order dated 06.11.2009 agreed with the aforesaid orders of the disciplinary authority and rejected his appeal. The relevant part of the said order is as under:
I have gone through his appeal, para-wise comments of the disciplinary authority, D.E. file and other relevant materials available on record. I have also heard the appellant in O.R. on 12.5.2009. After going through the facts and circumstances of the case discussed in the foregoing paras, I found no ground to interfere with the orders of the disciplinary authority and accordingly the appeal is hereby rejected.
5. The contention of the applicant is that the order of the appellate authority is bad in law and the same has been passed taking into account the parawise comments of the disciplinary authority and, therefore, its decision is not independent and violative of the principles of natural justice. He has also submitted that in a number of cases, this Tribunal has held that the appellate authority cannot take into account the parawise comments of the disciplinary authority and such an action is against the principles of natural justice as the applicant has no opportunity to go through the same and make his submissions.
6. In this regard, he has also relied upon the Order of this Tribunal in OA 783/2002 Ex. Constable Ram Kumar Vs. Union of India & Ors., decided on 18.02.2003 and OA 2919/2002 Ex. Constable Rajender Singh Vs. Union of India & Ors., decided on 26.06.2003.
7. In the case of Ex. Constable Ram Kumar (supra), a co-ordinate Bench of this Tribunal has held as under:
3. During the course of submissions, it was pointed that the appellate authority had taken into consideration extraneous material in the form of comments of the disciplinary authority.
4. The settled principle of law is that an appeal must be decided on the basis of materials on record brought during the course of the enquiry. It is noted that the comments of the disciplinary authority had been taken into consideration by the appellate authority and a fact has been recorded to this effect while disposing of the appeal. When such is the situation and the appellate authority had taken the relevant record, the necessary conclusion would be that such extraneous material has crept into the mind of the appellate authority and prompted him to dismiss the appeal.
8. In the case of Ex. Constable Rajender Singh (supra) also, this Tribunal held as under:
By virtue of the present application, he seeks quashing of both the orders passed by the Disciplinary Authority as well as Appellate Authority. During the course of submissions, learned counsel for the applicant contended that the Appellate Authority while disposing of the appeal has considered the comments of the Disciplinary Authority which could not have been done. In this process extraneous factors have been taken into consideration. The law is well settled that extraneous factors cannot be taken into consideration, reason being whenever an appeal has to be disposed of it has to be decided on the basis of the material on record. During the course of the enquiry and before the Disciplinary Authoritys order, all factors must be known to the alleged delinquent. The comments of the Disciplinary Authority were not communicated to the applicant. Therefore, it must be taken to be extraneous material because they have not been communicated to the applicant. On this short ground, we allow the present application and quash the order passed by the Appellate Authority. However, we make it clear that it would be for the Appellate Authority to pass the appropriate order in accordance with law. Nothing said herein should be taken as an expression of opinion on the other contentions which we are not deciding.
9. He has also taken various other grounds in challenging the inquiry report as well as the order of the disciplinary authority.
10. The respondents have, however, refuted the aforesaid submissions of the applicant in their reply and submitted that the order of the appellate authority is quite clear and is a speaking one and the submission of the applicant is baseless.
11. We have heard the learned counsel for the applicant and the learned counsel for the respondents. At this juncture, we are not going into the various other grounds taken by the applicant for challenging the findings of the Inquiry Officer as well as the orders of the disciplinary authority. As stated by the learned counsel for the applicant, this Tribunal has held in a number of cases including the aforesaid two cases that the consideration of the parawise comments of the disciplinary authority by the appellate authority is against the principles of natural justice and, therefore, such orders of the appellate authority cannot be sustained.
12. We have also perused the documents produced by the respondents. They were only a bunch of photo copies of some orders collected in random. They should have produced the original file in which the parawise comments of the disciplinary authority have been considered by the appellate authority.
13. In view of the above position, we partly allow this O.A. and quash the Annexure A-2 order dated 04.11.2009 of the appellate authority only on the aforesaid ground and remit the matter to the said authority to consider the statutory appeal of the applicant independently and ignoring the aforesaid parawise comments furnished by the disciplinary authority and pass fresh orders within a period of two months from the date of receipt of a copy of this order.
14. We make it clear that nothing said in this order shall be construed as an opinion in respect of other contentions already raised by the applicant in this O.A. There shall be no order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
`SRD