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The service record of the Head Const. also shows him an habitual absentee as he was previously absented from duty willfully unauthorizedly and on your own at 21 occasions.

The above act on the part of you HC Ramesh Kumar No.513/SD (PIS Nos. 28800438) amount to gross misconduct, negligence, carelessness and dereliction on your duty and habitual absentee which renders you liable for punishment under the provisions Delhi Police (Punishment and Appeal Rule 1980)

4. When the applicant did not appear in the inquiry, the Inquiry Officer decided to proceed against him ex parte after due process and examined seven witnesses whereupon he framed the charge against the applicant on the lines of summary of allegations referred to above. The charge was served on the applicant on 25.5.2004 by deputing Special Police Messenger. The applicant did not plead guilty to the charge. He was, therefore, directed to produce defence witness and any other witness in defence. The applicant neither produced any witness nor submitted any defence statement in the inquiry.

7. The respondents have filed their reply in which they have controverted the contentions of the applicant. The applicant was under the control of DCP/South Distt. and, therefore, the enquiry has rightly been initiated against him. It is denied that the applicant has ever informed of his illness on telephone. The plea of illness is not correct. There are better medical facilities in Delhi and all reasonable opportunities were given to the applicant to improve himself but he did not avail them. He neither pursued the enquiry nor put appearance. The previous absent records have been taken into consideration as the applicant was a habitual absentee and incorrigible type of person and this has specifically been included in the charge sheet.

12. Another case relied upon by the applicants counsel is Ex.Constable Harish Chander Vs. Commissioner of Police, (W.P.(C ) No.11/2004 decided by the Honble High Court on 5.7.2010) wherein it has been held that late coming cannot be viewed as unauthorized absence from duty.

13. In reply, the learned counsel for the respondents submitted that the medical papers submitted by the applicant show that he was under medical treatment as outdoor patient and neither any rest was advised nor the applicant had made any application for leave. All the documents have been submitted after the enquiry was decided exparte against him. He did not submit the medical papers earlier. If he had gone to the hospital for taking the treatment as outdoor patient, there was no reason why he could not go to the office to attend the duty. Even he had been advised rest for medial reason, he should, and could, have applied to medical leave. The applicant remained absent after being relieved on transfer on 6.11.2002. He never joined the office ever since then. This is in addition to specific cases of past absence as contained in the charge sheet. The charge sheet clearly stated that the service record of the applicant shows him habitual absentee as he remained absent in the past on 21 occasions. It cannot, therefore, be said that the past cases including the nature of the applicant as a habitual absentee were not the part of the charge. The department had deputed a Special Officer to ensure service of the documents and other correspondence from time to time. The applicant had received the notices of the inquiry but he never appeared in the enquiry and did not inform the Inquiry Officer of the reason of his inability to attend the enquiry. Constable Dinesh Kumar Special Messenger submitted his report, a relied upon document, a copy of which was served upon him, reporting the information furnished by his father and Sarpanch of the village from which it was clear that the applicant was not available at home and even the father of the applicant was not aware of the illness. This is surprising that even his father was not aware of his illness. In any case, Constable Dinesh Kumar had no reason to depose against the applicant.

17. Since the issue of competence of the authority against the applicant has already been settled by the Five Members Full Bench vide Order 25.02.2010 of this Tribunal, this issue no longer survives for our consideration.

18. In so far as the applicants absence being unauthorized is concerned, the admitted position is that the applicant has not applied for any medical leave supported by any medical certificate advising rest on medical ground. The applicant was shown unauthorizedly absent on four different occasions in the charge sheet i.e. 24.05.2002, 12.6.2002, 18.10.2002 and 6.11.2002 till the date of issue of charge sheet on 25.5.2004. It was also stated in the charge sheet that he was a habitual absentee and remained absent from duty willfully and unauthorisedly in the past on 21 occasions. Thus, it cannot be said that the past cases were taken into consideration without being formed a part of the chargesheet. Also, It can also not be said that the respondents have taken into consideration the absence which was subsequent to issue of charge sheet. As a matter of fact, it is not a case where the applicant joined his duty and then remained absent willfully and unauthorisedly which has been taken into consideration by the respondents. The cases relied upon by the applicant are distinguishable on facts. The narration of the fact that the applicant never joined duties itself would not amount to have taken into consideration the absence in future. Further regarding absence, an argument has been advanced on the report of Constable Dinesh Kumar so as to say that the applicants father never made the statement as stated in the report. As regards the Sarpanch, Gram Panchyat, he deposed against the applicant because he was not having good relation with his family. Such a bald explanation without being supported by any evidence cannot be taken into consideration on its face value. Furthermore, the applicant could have produced his father as witness to controvert the correctness of said report. Besides, no reason has been brought forward to show as to why Constable Dinesh Kumar would file false report against the applicant. He could have cross-examined Constable Dinesh Kumar to challenge the veracity of his report. It cannot be said that the appellate authority has not given any consideration to the medical certificate regarding illness of the applicant. The appellate authority cannot be said to have erred in rejecting the applicants contention in this regard. The fact remains that the report of Constable Dinesh Kumar remained uncontroverted in the enquiry. The applicant had not submitted any certificate given by the competent Medical Authority advising rest. What has been submitted by him in the copies OPD Card indicating that he is undergoing treatment. There is nothing therein which amounts to advising rest on medical grounds. Being under medical treatment is different from medical advice for rest. In late case, the person may apply himself or through his family members for leave. This has not been done in the present case. The cases relied on by the applicant are distinguishable on facts. If one remains absent without applying for any kind of leave, it may amount to desertion for which he may be dismissed from service which would not be viewed as excessive in such a case.