Durga Prasad (05/Rb) (Constable) vs Govt. Of N.C.T. Of Delhi
2002 Latest Caselaw 1616 Del

JUDGMENT

S.B. Sinha, C.J.

1. Interpretation of the expressions 'previous record' and ' previous bad record ' occurring in Rules 10 and 16(xii) of the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter for the sake of brevity referred to as, 'the said Rule'), arises for consideration in this writ petition.

2. A departmental proceeding was initiated against the petitioner for his unauthorized absence and vide order dated 29.01.1999, the disciplinary authority directed his dismissal from service. By an order dated 02.07.1999 passed by the Additional Commissioner of Police the appeal preferred by the petitioner against the said order dated 29.01.1999 was dismissed.

3. It has been stated that prior thereto two absentee notices dated 04.11.1997 and 31.12.1997 had been issued at his permanent residential address with the directions to the petitioner to resume his duties at once, failing which disciplinary action will be taken against him. However, he did not comply with the said directions. He resumed his duty vide D.D. No. 28 dated 12.01.1998 after absenting himself for a period of 118 days and 45 minutes and in relation thereto the aforementioned disciplinary proceedings were initiated.

4. Before the learned Tribunal as also before us, the question, which has been raised, is as to whether the previous conduct of the petitioner wherein he had been granted leave could have been taken into consideration for the purpose of quantum of punishment.

5. The learned Tribunal in its impugned judgment referring to the Rules 10 and 16(xi) of the said Rules held:-

"11. A perusal of these two rules would show that the disciplinary authority is entitled to scan the previous record for maintenance of discipline. Rule 10 which deals with the maintenance of discipline does not speak of previous bad record, so even if the contentions raised byu the counsel for the applicant are accepted that previous absence had been regularized and that record is not bad record, then also the disciplinary authority was entitled to refer to the previous record for the purpose of maintenance of discipline and could come to the conclusion if the previous record shows continued misconduct indicating incorrigibility and complete unfitness for police service then it could award penalty of dismissal from service. So far is Rule 16 (xi) is concerned, it speaks that if it is considered necessary to award a severe punishment by taking into consideration the previous bad record then the previous bad record has to form the basis of a definite charge against the employee. In this case the past record which has been relied by the disciplinary authority as has been reproduced above in para 3, it is indicated that the applicant had been absenting himself frequently and that too for various long spells and his absence had always been in an unauthorized manner though on certain occasions his absence had been regularized subsequently by granting him leaves of different kinds but still on 3 different occasions, he had been punished, as indicated in the above chart. Thus, the past record, as it is reflected in the order of the disciplinary authority includes the previous bad record as well as the record of previous absence though the same had been regularized by grant of various kinds of leave and in case we apply the Rule 10 and 16 (xi) in an harmonious manner, then the entire record could be seen by the disciplinary authority for awarding punishment."

6. Mr. Shyam Babu, the learned counsel appearing on behalf of the petitioner, would contend that the learned Tribunal went wrong in interpreting aforementioned Rule 10 inasmuch as although the expression ' previous record ' has been used therein in contra-distinction with ' previous bad record ' in Rule 16(xi) of the said Rules. Rule 10 of the said. Rules refers to the misconduct and as such what was necessary to find out as to whether the petitioner had been guilty of the misconduct on previous occasions or not.

7. Drawing our attention to the order of the disciplinary authority impugned before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter for the sake of brevity referred to as, 'the Tribunal'), it was pointed out that leave had been granted to the petitioner on four (4) occasions and as such the same cannot be considered to be misconduct so as to attract Rule 10 of the said Rules. The learned counsel in support of the aforementioned contention relied upon Union of India and Ors. v. Ram Phal and Delhi Administration and Anr. v. Constable Yasin Khan .

8. The charges against the petitioner were as follows:-

"On perusal of his past service record it was found that prior to this he had absented himself on the following occasions for which he awarded major/minor punishment to mend his ways but no avail:-

Date of

absence

Period of absence

Decision

Days

Hours

Mnts

9.5.87

--

Punishment Drill

9.10.93

--

--

Sanctioned L.R.D.

11.4.93

--

--

Sanctioned E.L.

3.3.95

--

--

Leave without pay

17.5.94

--

--

Leave without pay

8.12.96

Pay reduced by two stages permanently.

27.11.95

--

--

Pay reduced by two

(absence/overstay )

stages permanently

11.1.93

Leave without pay

It shows that const. Durga Prasad No. 05/RB is a habitual absentee and an incorrigible type of police personnel which renders him liable to be 'dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980."

9. The Enquiry Officer in his report observed:-

"Keeping in view to the above mentioned discussion of evidence as well as material on records the undersigned reached on the conclusion that Sh. Durga Prasad, No. 5/RB (PIS No. 2885-342) is a habitual absentee. He became absent from Govt. duties unauthorisedly without any valid reason whenever he wants to do so. Even the Major punishment like four stage deduction in his pay permanently failed to change in his attitude at all. The charge is fully proved on the defaulter Const. Durga Prasad, No. 5/RD. He violated the S.O. No. 111. So, I prove him guilty."

10. The disciplinary authority in his order dated 29.01.1999 agreed with the aforementioned finding and held:-

"On perusal of his past service record it was found that prior to this he had absented himself on the following occasions for which he awarded major/minor punishment to mend his ways but no avail:-

Date of absence

Period of absence

     Decision

Days

Hours

Mnts

9.5.87

--

Punishment Drill

9.10.93

--

---

Sanctioned L.R.D.

11.4.93

--

---

Sanctioned E.L.

3.3.95

---

--

Leave without pay

17.5.94

--

--

Leave without pay

8.12.96

Pay reduce by two stages permanently.

27.11.95

--

--

Pay   reduce   by   two stages permanently.

(absence/overstay)

11.1.93

Leave without pay

It shows that he is a habitual absentee and an incorrigible type of police personal.

The D.E. was entrusted to Inspr. Sajjan Singh. During the D.E. proceedings the summary of allegation/list of witnesses and list of documents etc. were served upon the defaulter Const. on 16.5.98 at his permanent residence as he was running absent. Thereafter, two notices were served upon him to join/attend the D.E. proceedings but he did not attend the same and deliberately avoided to join the proceedings. On finding no other alternative, orders to conduct the D.E. proceedings exparte were issued on the report of enquiry officer vide this office order No. 9132-34/ HAP/DCP-RB dt. 6.8.98 and the E.O. was directed to proceed the DE proceedings on to him, it requires a severe punishment. In a security set up where duty is fixed and on shift basis, such type of unauthorized absence could not be taken lightly as it not only hamper the security arena but also encourage others to follow suit. I thus see no reason to take any lenient view against such incorrigible type of person against whom there would be no other penalty except dismissal from force. Accordingly, I dismiss defaulter Const. Durga Prasad No. 05/RE (PIS No. 28850342) from the force with immediate effect. His absence period mentioned in para 1 above is hereby decided as period not spent on duty (Dies-Non) resulting in loss of pay and allowance on the principle of 'no work no pay' under the provisions of FR-17."

11. The appellate authority also in his order dated 02.07.1999 considered the question in the following terms:-

"His other plea that his previous absences have wrongly been taken into consideration also does not hold any ground. His previous record has been taken into account only to prove that he is a habitual absentee. He absented himself previously on 8 different occasions for a total period of 947 days for which he was awarded 2 major punishment and minor punishments on different occasions. It speaks of his callousness, incorrigibility and casual attitude and renders him unbecoming of a member of the discipline force. His previous absents shows that he is a habitual absentee and that he did not mend himself. Despite of 2 minor punishments.

Habitual absences for long period without any intimation or permission of the competent authority amount to grave misconduct on part of the appellant. In view of the gravity of the matter, the appellant does not deserve any leniency. The pleas taken by him are not tenable. He has rightly been punished by the disciplinary authority. I do not find any ground to interfere with the order of the disciplinary authority. Hence the appeal is hereby rejected."

12. Rules 10 and 16(xi) of the said Rules read thus:-

"10. Maintenance of discipline - The previous record of an officer, against whom charges have been proved, if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the punishment awarded shall ordinarily be dismissal from service. When complete, unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank.

16. Procedure in departmental enquiries- (xi) if it is considered necessary to award a severe punishment to the defaulting officer by taking consideration his previous bad record, in which case the previous bad record shall form the basis of definite charge against him and he shall be given opportunity to defend himself as required by rules."

13. Rule 16(xi) of the said Rules deals with necessity to frame a charge, whereas Rule 10 thereof deals with maintenance of discipline.

By reason of Rule 10, a finding of fact has to be arrived at that the previous record of an Officer against whom charges have been framed, if show continued misconduct, the punishment awarded shall ordinarily be dismissal from service. The previous record of an officer, therefore, refers to the misconduct of the delinquent officer and in that view of the matter, it was not necessary for the framers of the said Rules to use words ' previous bad records '.

Rule 16(xi) of the said Rules, however, refers to 'previous bad record', so that the same may form the basis of a separate charge.

In a case of continuous absence without intimation, the ' extraordinary leave ' or ' leave without pay ' may be granted. but for the purpose of framing a charge, the same would amount to previous bad record, whereas Rule 10 aforementioned, it will bear repetition to state, refers to the bad records relating to misconduct. Absence without leave by itself is a misconduct although in a given case no penalty is imposed therefore.

Both the aforementioned provisions seek to achieve the same purpose, namely, as to whether the previous record as regards misconduct and/or previous bad record should be taken into consideration for awarding punishment of dismissal.

14. The appellate authority, as noticed hereinbefore, has recorded that the petitioner was a habitual absentee. He remained previously absent on 8 different occasions for a total period of 947 days wherefor he awarded two major punishments and minor punishments on different occasions. It may be that on some of the occasions, he had not been awarded a punishment, but it would not mean that thereby unauthorized absence could not have been taken into consideration for the purpose of framing a charge. Once it is found as of fact by the Enquiry Officer that the charges levelled against him are correct wherefor he had been given an opportunity of hearing, the same could be taken into consideration also for the purpose of applying Rule 10 aforementioned.

15. In Ram Phal's case (Supra) , the Apex Court held:-

"In the present case the order of dismissal was not passed by way of penalty for the misconduct of absence from duty without leave. Though such absence was the cause and, therefore it has been referred to in the show-cause notice and the order of dismissal, the respondent's service came to be terminated on the ground that his conduct had rendered his retention in service undesirable. The order of respondent's dismissal was passed not because the misconduct of absence without leave was proved but because his further continuance in service was considered undesirable. The order was passed not by way of penalty but in exercise of an independent and separate power conferred by Section 11. Obviously, after holding that further retention of respondent in the service was undesirable. While passing the order of dismissal it was necessary to pass some order as to how the period of absence was to be treated for the purposes of finalising the dues and other benefits payable to the respondent. While ordering that period to be treated as extraordinary leave the commandant did not knock out the basis of the order of dismissal passed by him as the basis of the order was that by remaining absent without leave for a long period the respondent had so conducted himself that his further retention in service had become undesirable. Therefore, it cannot be said that by treating the period of absence as extraordinary leave the commandant had made his order of dismissal inconsistent."

16. In Yasin Khan's case (Supra) , it was held:-

"We have heard learned counsel for the parties and gone through the record of the case, considered the precedent cited at the Bar. We are in agreement with the Tribunal inasmuch as Rule 16(11) of the Rules makes it obligatory for the Disciplinary Authority to specifically include the previous bad record in the Memo of Charges as a definite charge in the event the Disciplinary Authority wishes to rely upon it for the purposes of imposing penalty. In the present case, the absence of specific charge to the effect that the respondent has previously also been absenting himself without leave, could not have been relied upon by the Disciplinary Authority while awarding punishment of dismissal from service. It is difficult to say as to what extent the previous conduct of the respondent influenced the mind of the Disciplinary Authority and, therefore, the awarding of penalty, based on previous conduct, has rightly been disallowed by the Tribunal. As regards the question of treating the period of absence as "leave without pay", recorded in the dismissal order, is, to our mind, only by way of completing service record, as has been held in the case of State of M.P. v. Harihar Gopal , 1969 SLR 274."

17. The aforesaid decisions, in our opinion, lay down a ratio the previous absences without prior leave can be taken into consideration for imposition of an order of dismissal in terms of Rule 10 of the Rules, over a charge in relation thereto had been proved. It may be noticed that the petitioner herein did not raise any question that the charge formed against him in terms of Rule 16(xi) was defective. If his previous absence without leave could form the basis of a separate charge, we are of the opinion that the same also could be taken into consideration for the purpose of Rule 10 of the Rules.

18. As indicated hereinbefore, the petitioner had been found guilty on earlier occasions and had been granted major punishments as also minor punishments. Even if his earlier regularized by grant of ' leave without pay ' or ' extraordinary leave ', the same by itself need not be excluded from consideration for the purpose of awarding punishment. Even if the same is done, no different result would be reached.

19. It is a well-settled principle of law that even if the period of absence, which had been regularized, is excluded, the same remains a misconduct which, in our opinion, would be sufficient to award dismissal of punishment. (See Binny Limited v. Their Workmen and Anr. ).

20. As regards the question raised by the learned counsel appearing for the petitioner that a separate notice was required to be issued to the petitioner for treating the said period of absence as dies non in terms of FR-17(A), we are of the opinion that it was not necessary to do so inasmuch as it was the disciplinary authority, who was to impose the said punishment. Furthermore, the petitioner had already been given an opportunity of hearing. The Rules do not provide for giving a further opportunity therefore, and as such the said submission cannot be accepted.

21. For the reasons aforementioned, there is no merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.