Ex. Const. Jakhruddin vs Lt. Governor, Delhi And Ors.
2002 Latest Caselaw 223 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioner herein absented from duty on three occasions because of which he was issued show cause notices dated 13th June, 1996, 22nd July, 1996, 4th September, 1996 and 10th September, 1996 for censure. These notices were for censure and leave without pay. Thereafter by O.M. dated 13th November, 1996 the aforesaid show cause notices were withdrawn "on administrative grounds". While withdrawing these show cause notices no specific reason was stated. It was also not mentioned that the proceedings were being dropped without any prejudice to further action contemplated.

2. Thereafter charge-sheet dated 14th November, 1996 was issued to the petitioner alleging that he remained absent on the following occasions willfully and unauthorisedly:-

-------------------------------------------------------------~ DD No.& Date of DD No.& Dt of Total Absence Pd absence arrival Day Hrs. Mits.~

------------------------------------------------------------

           1.   31, IGIA LINES       26, IGIA LINES  9      7       50
                DT.26.2.96           DT.6.3.96

           2.   33, IGIA LINES       8 IGIA LINES    15     11      55
                DT. 10.4.96          DT.26.4.96

           3.   45, IGIA LINES       34, IGIA LINES   19     23     50
                DT.13.3.96           DT.2.4.96

           4.    33, IGIA LINES      42, IGIA LINES    17    02     --
                DT.11.5.96           DT.28.5.96

           5.   15, IGIA LINES        30 DT.8.7.96      33   05      30
                DT.6.6.96 FROM        IGIA LINES
                2 DAYS CL W.E.F.
                3.6.96.

...............................................................

3. It was also mentioned that since 16th September, 1996 the petitioner was again unauthorisedly and willfully absenting himself from duty. This was the position during the date of issue of the aforesaid charge-sheet dated 14th November, 1996. In addition to the aforesaid charges, the charge-sheet also stated that the scrutiny of petitioner's past record revealed that he had absented himself earlier also on 16 occasions for which he was awarded PD, sanctioned CL, EOL, leave without pay but he did not mend himself.

4. On the basis of the aforesaid charges of unauthorised absence the charge-sheet further mentioned as under:-

"The above act of habitual absenteeism on his part amounts to grave indiscipline, gross misconduct and totally unbecoming of a Police Officer which is in violation of Rule 3(1)(i)(ii)(iii) of CCS Conduct Rules 1964 and renders him liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980."

.

5. This was followed by another charge-sheet dated 3rd April, 1997 wherein it was stated that the petitioner was absenting himself since 16th September, 1996. This shows that even after the service of earlier charge-sheet dated 14th November, 1996, the petitioner had not resumed duty and as he continued to absent from duty this charge-sheet was issued. Enquiry was held against the petitioner on the basis of these charges. After the Enquiry Officer submitted his report dated 20th October, 1997 whereby he arrived on the following conclusion:-

"Keeping in view to the prosecution evidence and other records in the light of material on record, I reached the conclusion that the delinquent Const. Jakhruddin, No.412/A remained absent willfully and unauthorisedly without seeking permission from the department.

The deliquent const. is habitual absentee and did not produce any authentic or legal proof in his defense and regarding his period of absence. The ex-parte orders were obtained from the disciplinary authority after giving many opportunities and sufficient time to the defaulter const. Jakhruddin No.1767/A. The charge against default Ct.Jakhruddin, No.1767/A (412/A) is proved."

6. The charges having been proved, the Disciplinary Authority, accepting the report of the Enquiry Officer, passed the Order dated 6th February, 1997 dismissing the petitioner from service with immediate effect. The relevant portion of this Order reads as under:-

"Keeping in view the overall facts and circumstances of the case it is clear that he is a incorrigible type of a Police Official and not interested in service. He is totally unfit to be retained more in a disciplined force like Delhi Police and any punishment less than his dismissal from force will be meaningless. Therefore, I, A.S.Toor, Dy.Commissioner of Police, IGI Airport, New Delhi hereby order that Const.Jakhruddin No.412/A, now 1767/A (PIS No.28892539) is dismissed from the force with immediate effect. The entire period of his absence i.e. from 26.2.96 to 5.3.96, 10.4.96 to 25.4.96, 13.3.96 to 1.4.96, 11.5.96 to 27.5.96, 6.6.96 to 7.7.96, 16.9.96 to 24.10.96 treated as "NOT SPENT ON DUTY" (Dies-non) for all intents and purposes."

7. The petitioner filed appeal dated 23rd April, 1998 against this Order to the Appellate Authority which was dismissed by Order dated 29th December, 1997. The petitioner preferred Review Petition which met the same fate as Order dated 11th February, 1999 was passed rejecting the review also.

8. At this stage the petitioner approached Central Administrative Tribunal by filing O.A. 240/2000 and challenged the Orders passed by the Disciplinary Authority, Appellate Authority as well as Reviewing Authority. By the impugned judgment dated 30th March, 2001 the learned Tribunal has dismissed his O.A. This is how the present Writ Petition has been preferred by the petitioner challenging the Order passed by the above Authorities.

9. The only contention pressed by the learned counsel for the petitioner was that having dropped the charges earlier vide Order dated 13th November, 1996 on administrative grounds and without reserving any right to take fresh action, it was not permissible on the part of the respondents to initiate the Departmental proceedings again. In support of his submission he relied upon Circular dated 28th April, 1993 of the respondents themselves as per which once the show cause notice issued earlier was dropped on administrative ground without specifying reasons and without mentioning that further action would be contemplated, subsequent departmental enquiry was not permissible. He submitted that this Circular was issued on the basis of judgment of Central Administrative Tribunal and the respondent was bound by its own Circular/administrative instructions. In support of this submission the learned counsel relied upon the judgment of the Supreme Court in the case Daniraiji Vrajlalji, Junagadh versus Maharaj Shri Chandraprabha

and that of Andhra Pradesh High Court in the case Y.

Ganga Raju and others versus The Railway Board and others reported in 1983 SLR 686.

10. There may be some force in the submission of learned counsel for the petitioner that after having withdrawn the show cause notices issued earlier on 'administrative grounds' and without reserving right to hold fresh enquiry on the allegations made in the said show cause notices it would not be permissible to issue the charge-sheet again on the same allegations. However, a closer scrutiny of the charge-sheet dated 14th November, 1996 shows that besides absence on some occasions for which the petitioner was issued show cause notices which were withdrawn by Order dated 13th November, 1996 the main charge was continuous absence w.e.f. 16th September, 1996 which could not have been the subject matter of earlier show cause notices. However, it transpired thereafter that w.e.f. 16th September, 1996 the petitioner started absenting continuously which absence was unauthorised and willful. May be, for these reasons, the authorities decided to withdraw the earlier four show cause notices for 'censure and leave without pay' which were for one day's absence on each occasion and keeping in view the continuous absence of about two months by that time it was decided to initiate major penalty proceedings and for this reason after the passing of Order dated 13th November, 1996, withdrawing the earlier show cause notices, comprehensive charge-sheet dated 14th November, 1996 was issued. What is important to note is that in charge-sheet dated 14th November, 1996 there is a grave charge to the effect that the petitioner was remaining absent w.e.f. 16th September, 1996 unauthorisedly and willfully without information/ intimation to the Department. Even after 14th November, 1996 the petitioner did not join the duties and that led to issuance of charge-sheet dated 3rd April, 1997 alleging that the petitioner was still continuing to absent himself from duty. Thus graveman of the charge is continuous absence from duty since 16th September, 1996. It is this charge which stood proved and keeping in view the gravity of this charge punishment of dismissal was imposed. Therefore, merely because the four show cause notices dated 13th June, 1996, 22nd July, 1996, 4th September, 1996 and 10th September, 1996 issued earlier were withdrawn by Order dated 13th November, 1996, there was nothing to prevent the respondents to issue further charge-sheet when the petitioner started absenting from service unauthorisedly and willfully w.e.f. 16th September, 1996 and this charge was not the subject matter of the aforesaid show cause notices. Therefore, even if the charges levelled against the petitioner in the four show cause notices related to one day's absence on each occasion is ignored, that would not affect the validity of the charge-sheet, enquiry proceedings and resultant punishment.

11. When the matter is examined in this perspective, it also answers another contention of the petitioner which was to the effect that in earlier show cause notices the punishment of censure and leave without pay was contemplated and after withdrawal of the same the respondents now imposed much severe punishment namely, dismissal from service. As mentioned above, the afore-mentioned four show cause notices were for absence of one day each whereas emphasis/occasion of the charge-sheet dated 14th November, 1996 and 3rd April, 1997 was continuous absence w.e.f. 16th September, 1996. For such a long absence, that too unauthorisedly and willfully, the respondents could have imposed punishment of dismissal. It is not to be forgotten that the petitioner belonged to police service and long habitual absenteeism would be an act of grave indiscipline.

12. It was also submitted by learned counsel for the petitioner that in the charge-sheet dated 23rd November, 1996 and 3rd April, 1997 the respondents had mentioned about the past record and this according to him was not permissible. This contention is misconceived. The charge against the petitioner was an act of habitual absenteeism and for this the respondents could take into consideration the past record of the petitioner and the charge-sheet dated 3rd April, 1997 in this respect recorded as under:-

"On scrutiny of past record, it reveals that you have absented yourself on 16 occasions for which you have awarded PD, Sanctioned CL, EOL, LWP, etc. but did not mend yourself."

13. It is now trite law that while imposing the punishment past record can be taken into consideration and the respondents rather adhered to the principle of natural justice by bringing to the notice of the petitioner his past record so that he had the opportunity to meet this allegation while defending himself in the departmental enquiry.

14. our view therefore the learned Tribunal rightly rejected the Original Application of the

petitioner as without any merit. This Writ Petition is accordingly dismissed leaving the parties to bear their own costs.