Central Administrative Tribunal - Delhi
Rajesh vs Comm. Of Police on 27 September, 2023
1
OA No. 1217/2020
Item No.28/C-2
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1217/2020
Reserved on : 14.09.2023
Pronounced on : 27.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Rajesh
Constable in Delhi Police
PIS No. 28080988
Aged about 32 years
S/o Sh. Satbir Singh
Ro VPO : Kheri, PS : Meham
Distt : Rohtak, Haryana.
.. Applicant
(By Advocate : Mr. Anil Singal)
Versus
1. Delhi Police
Through Commissioner of Police
PHQ, I.P. Estate
New Delhi.
2. Special C.P. (South-Eastern Range)
PHQ, I.P. Estate
New Delhi.
3. DCP (South-East Distt.)
Sarita Vihar
New Delhi.
.. Respondents
(By Advocate: Mr. Amit Yadav)
2
OA No. 1217/2020
Item No.28/C-2
ORDER
Dr. Anand S. Khati, Member (A) In the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the Findings of the Inquiry Officer dated 14.06.2016, Disciplinary Authority‟s order dated 16.08.2016 whereby the penalty of removal from service has been inflicted upon him, the Orders dated 18.08.2017 and 02.06.2020 passed by the Appellate Authority and Revisional Authority upholding the order of the Disciplinary Authority, respectively. He is also seeking a direction to the respondents to reinstate him in service, with all consequential benefits including promotion/seniority and arrears of pay.
2. The brief facts leading to the present O.A. are that the applicant was working as Constable in Delhi Police since 25.05.2008. On 31.12.2009, his wife delivered an abnormal baby girl, who was admitted in hospital for treatment since birth till 2012 and, thereafter, his father undergone some surgery on 13.04.2013 and remained hospitalised till 05.05.2013, due to which the applicant had to remain absent from duty during that period. Thereafter, in the peculiar circumstances, the applicant became depressed and mentally unstable and remained under treatment for a long time. Accordingly, for his unauthorised absence from 3 OA No. 1217/2020 Item No.28/C-2 26.12.2012, the respondents initiated departmental proceedings against the applicant vide order dated 19.08.2014. The summary of allegations against him is evident from the findings given by the Inquiry Officer vide his report dated 14.06.2016, which reads as under:
"It is alleged against Const. Rajesh, No.1211/SE (PIS No. 28080988) that while posted in PS Pul Prahlad Pur was absented himself from duty w.e.f. 26.12.2012 vide DD No. 46- B dated 26.12.12 willfully and unauthorizedly. He resumed his duty on 19.06.2013 vide DD No. 23B after absenting himself for a period of 156 days 18 hours. Ct. Rajesh Kumar, No 1211/SE is still running absent w.e.f. 14.07.2013 vide DD No. 42-B, dated 14.07.2013, PS H.N. Din.
The following absentee notices were issued to him with the direction to resume his duty at once. In case sick, he may kindly be directed to furnish medical papers in this office:-
Sl.No. Absentee Notice No. & Date
1. 1311-15/SIP/SED dated 16.01.2013
(received by his uncle Sh. Dharmender
Singh on 22.02.2013)
2. 4713-17/SIP/SED dated 28.03.2013
(received by him)
3. 6896-6900 SIP/SED dated 08.05.2013
(received by him)
4. 11736-39/SIP/SED dated 30.07.2013
On perusal of his previous absence record, it reveals that earlier he had also absented himself on 17 different occasions which have already been decided by the competent authority as PD, Casual Leave, Earned Leave, EOL, Commuted Leave and LWP. But he did not mend his ways even after so many opportunities provided to him in the past. It shows that he is an incorrigible type of person and a habitual absentee.
The above act on the part of Const. Rajesh, No. 1211/SE clearly shows that he has violated the provisions of CCS (Leave) Rules, 1972 and S.O. No.111 of Delhi Police, amounts to grave misconduct and indiscipline which renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 rend with Sec. 21 of D.P Act, 1978"4 OA No. 1217/2020
Item No.28/C-2
3. The Inquiry Officer (IO) conducted the inquiry and submitted his findings dated 14.06.2016, concluding the charges levelled against the applicant are „proved‟. The Disciplinary Authority agreed with the findings of the IO and vide order dated 16.08.2016, imposed the punishment of „dismissal from service‟ upon the applicant with immediate effect and the period of absence was treated as „not spent on duty‟ for all intents and purposes. Further, the appeal filed by the applicant along with the Medical documents was rejected by the Appellate Authority vide order dated 18.08.2017 and, thereafter, his Revision Petition was also rejected by the Revisional Authority vide order dated 02.06.2020. Challenging the aforesaid orders, the applicant has approached this Tribunal by way of instant O.A. seeking the following relief(s):
"1. To quash and set aside the Findings dt. 14.6.2016, Order of Punishment dt. 16.8.2016, Appellate Order dt. 18.8.2017 and Revisional Order dt. 2.6.2020 and direct the respondents to reinstate the applicant in service with all consequential benefits including promotion/ seniority & arrears of pay.
2. To award costs in favor of the applicant and
3. To pass any order or orders, which this Hon‟ble Tribunal may deem just & equitable in the facts & circumstances of the case."
4. Shri Anil Singal, learned counsel for the applicant, besides other grounds, argued that the applicant was absent from duty, however, the reasons had been beyond his control 5 OA No. 1217/2020 Item No.28/C-2 inasmuch as his daughter, father and he himself were under medical treatment during the period, for which he has been shown as unauthorisedly absent. It is submitted that the applicant had produced valid medical certificates before the Competent Authority, however, without verifying the authenticity of the said medical certificates, the applicant has been declared unauthorisedly absent and punished vide the impugned orders. The learned counsel further averred that while passing the impugned orders, the respondents have violated their own policy decision vide circular dated 23.07.1997, therefore, the impugned orders are liable to be quashed and set aside.
5. The respondents have filed a counter affidavit opposing the claim of the applicant. In the counter affidavit, it is submitted that the applicant had absented himself w.e.f. 26.12.2012 wilfully and resumed his duty on 19.06.2013, i.e., after absenting himself for a period of 156 days and 18 hours. He was issued several absentee notices with a direction to resume duty at once or to submit medical documents, in case he was sick. On perusal of previous absentee record, it was revealed that the applicant had absented himself on 17 different occasions which have already been decided against different kinds of leave but he did not mend his ways despite several opportunities provided to him, which shows that he is an incorrigible person and a habitual absentee. 6 OA No. 1217/2020 Item No.28/C-2 Accordingly, an IO was appointed and disciplinary proceedings were initiated against the applicant, after serving summary of allegations upon him and providing adequate opportunities to defend his case as per the rules. The applicant did not avail the same and even not participated in the inquiry for the reasons best known to him. The IO conducted the inquiry ex-parte by adopting the procedure as laid down in Rules 16 and 18 of Delhi Police (Punishment & Appeal) Rules, 1980, after examining the PWs and gave his findings vide report dated 14.06.2016. The Disciplinary Authority find no reason to disagree with the findings of the IO, a copy of the same was also delivered to the applicant on 05.07.2016 at his native place with a direction to submit his reply within 15 days, however, he did not submit any response despite several reminders issued to him. Accordingly, vide order dated 16.08.2016, punishment of „removal from service‟ was inflicted upon him.
6. The respondents have referred to various judgments of the Hon‟ble Apex Court as well as of this Tribunal to contend that the applicant had not obtained prior permission of the Competent Authority before remaining absent from duty and, as such, there is no illegality in holding him guilty of being unauthorisedly absent as he violated the directives of SO No.111 of Delhi Police and Rule 19.5 of the CCS (Leave) Rules, 1972. 7 OA No. 1217/2020 Item No.28/C-2
7. Learned counsel for the respondents vehemently argued that absenteeism in a disciplined force, like Delhi Police, is a serious lapse as it cripples the entire administration of the Department. The applicant shows indiscipline and defiance of the rules and is a habitual absentee. Accordingly, vide order dated 16.08.2016, the Disciplinary Authority imposed the punishment of „removal from service‟ upon him and decided to treat the period of unauthorised absence as „not spent on duty‟ for all intents and purposes and, therefore, there is no illegality in the disciplinary action taken by the respondents against the applicant and the impugned orders have rightly been passed by the competent authority. Vide order dated 18.08.2017, it has been clearly mentioned that the applicant was heard in OR on 01.08.2017 and was also asked to submit all the medical documents of his wife, parents and his own, but he had taken the plea that all the papers have been lost nor was able to collect the photocopies from the concerned hospitals. He never sent any information/medical documents to the leave sanctioning authority, despite issuance of absentee notices. Accordingly, the appeal filed by the applicant was rejected by the Appellate Authority.
8. In rejoinder, learned counsel for the applicant submitted that the issue involved in the present O.A. is squarely covered by the judgment dated 13.03.2013 of the coordinate Bench of this 8 OA No. 1217/2020 Item No.28/C-2 Tribunal passed in O.A. No.3115/2012 titled Sushila Devi Vs. Govt. of NCT of Delhi & Ors., which has also been followed in O.A. No. 3679/2017 dated 11.11.2021. Paras 11 to 13 of the judgment in Sushila Devi (supra) read as under:
"11. There is no doubt that unauthorized absence from duty particularly by the officials in a disciplined Force like Delhi Police is a grave misconduct. But before the inquiry officer or the disciplinary authority come to such a conclusion, proper inquiry has to be done. However, in this case the report of the inquiry officer reveals that the inquiry was held in a very casual manner. From reading the statements of the official dealing with the applications of leave of the employee concerned that the official remained on leave for different spells and absent notices have been sent to him will not prove that the absence of the applicant was for not genuine reasons and just because the disciplinary authority does not sanction leave, all absences can be treated as unauthorized. Before the absence of an employee is declared unauthorized, the authority concerned has to give reasons for doing so. We are, therefore, of the view that the disciplinary authority‟s order dismissing the applicant from service was taken in an arbitrary manner without ascertaining the factual position. It is also on record that the applicant made several attempts to get the DD entries lodged about his illness but the duty officer insisted him to attend the duty personally unmindful of the fact that he was suffering from the deadly ailment of hepatitis. Again it is unfair on the part of the inquiry officer to expect the applicant to be present during the inquiry proceedings when he was still suffering from the aforesaid disease and undergoing treatment.
12. Again under Rule 8 of the Delhi Police (Punishment & Appeal) Rules, 1980, the punishment of removal or dismissal from service can be awarded only for gross misconduct rendering one unfit for police service. The inquiry officer is expected to say only whether charge leveled against the delinquent was proved or not. While charge proved against him was grave or not was to be left to the disciplinary authority. It is also not the prerogative of the inquiry officer to decide whether the delinquent was fit to police duty or not. The said rule is reproduced as under:-
"8. Principles of inflicting penalties:-9 OA No. 1217/2020
Item No.28/C-2
(a) Dismissal/Removal. Punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service."
In our considered view both the disciplinary as well as the appellate authorities did not apply their mind. They have been swayed by the report of the inquiry officer which was beyond his jurisdiction. Further, it is seen that the applicant‟s husband died immediately after his dismissal from service. It also shows that his claim that he was suffering from hepatitis and other diseases was not unfounded.
13. In view of the above facts and circumstances in this case, we allow this O.A. and quash and set aside the impugned inquiry officer‟s report and the orders of the disciplinary as well as the appellate authorities. As the applicant has, unfortunately, expired on 16.07.2011, he shall deemed to have been re-instated in service w.e.f. 10.03.2011 i.e. the date of his dismissal from service with all consequential benefits. The respondents shall also pass appropriate orders and disburse all the financial benefits arising thereof in accordance with the rules within two months from the date of receipt of a copy of this order. There shall be no order as to costs."
9. Counsel for the applicant further submitted that the aforesaid circular dated 23.07.1997 has been considered by the Coordinate Bench of this Tribunal in para 9 of the judgment dated 13.03.2013 passed in Sushila Devi (supra), which reads as under:-
"9. Learned counsel has also relied upon the circular dated 23.07.1997 issued by the respondents directing the disciplinary authority to conduct verification of the medical certificates submitted by the police officials issued to them by the private medical practitioner, if they have any doubt about their genuinity. The circular is reproduced as under:-
"Circular It has been noticed while deciding the appeal cases that the median certificates produced by the delinquent officials in support of their version of illness for the alleged absences are not considered by the disciplinary authority. Generally these medical certificates are not accepted by the Disciplinary Authority without making any verification of its authenticity or genuineness from the concerned 10 OA No. 1217/2020 Item No.28/C-2 Dispensary/Hospital. The pleas taken by the delinquent in this regard are ignored completely on the grounds of being fake and procured medical certificates even in important cases of long absences and major punishment awarded to the delinquent officials.
It is therefore, emphasized upon the all DCsP/DAP Bns. And PTS that before deciding such cases which are duly covered by proper medical certificates necessary verification should invariably be made from the issuing agencies so as to avoid any implication at later stage.
Sd/-
( R.K. Niyogi) Sr, Adll. Commissioner of Police (P&T) Delhi No.F.XVI/63/97/8464-74/P-1, dated Delhi, the 23.7.97."
10. However, it is argued by the learned counsel for the respondents that the applicant has admittedly not attended the assigned duties for the period referred to in the disciplinary proceedings and remained absent without permission of the Competent Authority and, therefore, he has been proceeded departmentally on the allegations of wilful unauthorised absence. The Competent Authority has rightly passed the impugned orders in accordance with rules and, therefore, there is no illegality or infirmity warranting any interference by this Tribunal.
11. We have considered the submissions made by the learned counsels for the parties and have perused the pleadings on record.
12. It is not in dispute that the applicant did not attend his duties during the relevant period despite absentee notices and remained 11 OA No. 1217/2020 Item No.28/C-2 absent for a long period. It is also a fact that for the relevant period, the applicant had submitted applications seeking leave on medical grounds. He had also submitted various medical certificates before the Competent Authority. However, without verifying the authenticity of the said medical certificates, the respondents have declared him unauthorisedly absent and resultantly, the impugned orders have been passed imposing punishment of „dismissal from service‟. It is also not in dispute that unless the said medical certificates and the claim of the applicant in the said application is found fake, it cannot be construed that the applicant can be held guilty of being unauthorisedly absent from the duty. The applicant has claimed that he could not join the duty on account of treatment of his daughter, father and self illness and, thus, reason for being absent from duty was beyond his control. However, this has not been verified by the respondents during the departmental inquiry or otherwise. The respondents in the impugned orders have neither considered their own circular dated 23.07.1997 nor have dealt with the defence of the applicant that he could not join the duty on account of the reasons beyond his control. In this background, we are of the considered view that the respondents have passed the impugned orders not only in violation of their own policy decision as contained in their circular dated 23.07.1997 but also in a mechanical manner. A few judgments, of course, have been quoted in the counter reply filed by the respondents, however, the same have 12 OA No. 1217/2020 Item No.28/C-2 neither been argued nor do we find applicable in the facts and circumstances of the present case. Moreover, nothing has been brought on record or shown to us that the judgment of this Tribunal in Sushila Devi (supra) is not applicable in the present case.
13. In view of the aforesaid, the present O.A. deserves to be partly allowed. Accordingly, the same is partly allowed and the impugned orders dated 16.08.2016, 18.08.2017 and 02.06.2020 are quashed and set aside. However, the respondents shall be at liberty to proceed against the applicant, in accordance with law, from the appropriate stage. The applicant is entitled for all consequential benefits as per the rules and the respondents shall pass appropriate orders in this regard, as expeditiously as possible and preferably within six weeks from the date of receipt of a copy of this order.
There shall be no order as to costs.
(Dr. Anand S. Khati) (R.N. Singh)
Member (A) Member (J)
/jyoti/