Delhi High Court

Ram Kumar vs Commr.Of Police & Ors. on 18 August, 2009

Author: A. K. Pathak

*            HIGH COURT OF DELHI: NEW DELHI

+     Writ Petition (Civil) No. 2739/1999

                        Judgment reserved on: August 10, 2009
%                       Judgment delivered on: August 18, 2009

      RAM KUMAR                                         ..... Petitioner
                        Through: Mr. R.K. Saini, Advocate


                    Versus


    COMMR.OF POLICE & ORS.                     ..... Respondents
                 Through: Mr. Parinay D. Shah, Advocate
Coram:

      HON'BLE MR. JUSTICE MADAN B. LOKUR
      HON'BLE MR. JUSTICE A.K. PATHAK

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?                        Yes

      2. To be referred to Reporter or not?                     Yes

      3. Whether the judgment should be reported                Yes
         in the Digest?



A.K. PATHAK, J.

1. At the relevant time Petitioner was working as a Constable

in Delhi Police. He absented from his duties for a total period of

about 134 days on three different occasions without obtaining

prior permission from the competent authority. Accordingly,

departmental enquiry was initiated against the Petitioner in this

regard.

2. Following charges were framed against the Petitioner:-

"a) On 8.1.90 you were marked absent from C.L. vide DD. Entry No. 19 P.P. Tis Hazari. You resumed your duty vide DD entry No. 13 dt.

22.03.90 after absenting yourself unauthorizedly for a period of 73 days 21 hrs and 50 Minutes.

b) On 31.3.90 you were marked absent vide DD entry No. 35 P.P. Tis Hazari. You resumed your duty vide DD No. 10 dated 14.5.90 after absenting yourself unauthorisedly for a period of 43 days 12 hrs. and 30 minutes.

c) On 16.6.90 you were marked absent vide DD entry No. 16 while posted in Xth Bn. DAP.

You resumed your duty on 3.7.90 vide DD entry No. 9 after absenting your self unauthorisedly for a period of 17 days 1 hour and 50 minutes.

As such it shows that you are a habitual absentee. The above said act on your part amounts to grave negligence, carelessness and dereliction in discharge of your official duties."

3. Petitioner pleaded not guilty to the above charges. Initially

he appeared before the Enquiry Officer but subsequently stopped

appearing with effect from 7th October, 1990. He was proceeded

against ex parte. After examining four witnesses Enquiry Officer

gave his report dated 10th February, 1991 thereby holding that

the charges against the Petitioner were proved.

4. Copy of the enquiry report was supplied to the Petitioner on

18th February, 1991. Petitioner made a representation which was

considered by the Disciplinary Authority. Thereafter, vide order

dated 18th March, 1991 the Disciplinary Authority imposed

penalty of removal from service on the Petitioner. Period of

absence from duty was treated as without pay.

5. Petitioner filed an appeal before the Appellate Authority

which was rejected vide order dated 19th June, 1991.

6. Petitioner filed an Original Application being OA No.

1945/1992 before the Central Administrative Tribunal, Principal

Bench, New Delhi (for short hereinafter referred to as "Tribunal")

praying therein that the findings of Enquiry Officer as well as

orders passed by the Disciplinary Authority and the Appellate

Authority be quashed and Petitioner be reinstated in service with

all emoluments from the date of his removal.

7. By the impugned order dated 14th May, 1998 Tribunal

dismissed the O.A. of the Petitioner. Tribunal held that

continued unauthorized absence of the Petitioner from his duty

constituted grave misconduct. No Government employee can

claim leave as a matter of right more so in an uniformed force

like the Delhi Police whose Rules as well as Standing Orders

require its employees such as Petitioner to make proper

application for leave and await orders thereon before remaining

away from duty. Petitioner even did not participate in the enquiry

and was rightly proceeded ex-parte. Alleged medical certificate

produced in support of his sickness remained unproved as

Petitioner remained absent during the enquiry proceedings.

Tribunal also held that Rule 16(XI) of the Delhi Police

(Punishment and Appeal) Rules, 1980 (hereinafter referred to as

"said Rules") were not violated as no reference about the past bad

record was made in the Appellate order.

8. Aggrieved by the impugned order, Petitioner has approached

this Court by way of present writ petition under Article 226 of the

Constitution. It is prayed that order passed by the Tribunal be

quashed and Petitioner be reinstated with all consequential

benefits.

9. Learned counsel for the Petitioner has vehemently

contended that the Disciplinary Authority, in the penalty order,

has taken into consideration the previous bad record of the

Petitioner while awarding punishment of removal from service

and his this act violates Rule 16(XI) of the said Rules. He has

contended that as per the aforesaid Rule, before taking into

consideration Petitioner's previous bad record it was necessary to

frame a definite charge in this regard and afford an opportunity

to the Petitioner to defend himself on this point. Since no

separate charge was framed in respect of previous bad record nor

any opportunity was given to the Petitioner to defend himself in

this regard, penalty order is liable to be quashed. We have

considered this argument of the learned counsel for the Petitioner

but we do not find any force therein. Perusal of the order passed

by the Disciplinary Authority does not show that only in view of

previous bad record it was considered necessary to award severe

punishment to the Petitioner. Besides this we find that previous

bad record of the Petitioner has not been taken note of in the

order of the Appellate Authority.

10. Even otherwise, we are of the view that act of the Petitioner

in remaining absent on three occasions for long periods that too

without taking leave, by itself is a grave misconduct, more so,

when he belongs to a disciplined force such as the Delhi Police,

necessitate dismissal order, in order to maintain discipline in the

police force. Irrespective of the past conduct, the order of

dismissal from service is justified as Petitioner remained absent

for long duration without leave on three occasions, which fact, by

itself, shows that he was a habitual absentee.

11. In State of U.P. and Ors. Vs. Ashok Kumar and Anr.

reported in (1996) 32 Administrative Tribunal Cases 239,

Supreme Court has held as under:

"We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that "his absence from duty would not amount to such a grave charge". Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that "the punishment does not commensurate with the gravity of the charge" especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out."

12. In view of the above, we do not find any force in contention

of the learned counsel for the Petitioner that the punishment of

removal from service does not commensurate with the

misconduct of the Petitioner. As per the learned counsel for the

Petitioner, medical certificate was sent by the Petitioner to the

department justifying his absence of 73 days i.e. from 8th

January, 1990 to 22nd March, 1990. Only absence of 60 days,

i.e. with effect from 31st March, 1990 to 14th May, 1990 and 16th

June, 1990 to 3rd July, 1990 remained unexplained, which by

itself would not be sufficient to award punishment of removal

from service keeping in mind that Petitioner had been working

with the Respondent for a long period.

13. We find that the genuineness of medical certificates has

been doubted by the Enquiry Officer for cogent and good reasons

recorded in his report. Three different medical certificates were

available before the Enquiry Officer with regard to the period of

73 days of absence. Same doctor had issued these medical

certificates. Discrepancies are there in these certificates. As per

medical certificate dated 18th January, 1990 doctor had advised

rest to the Petitioner from 18th January, 1990 till his recovery.

However, in subsequent medical certificate dated 1st April, 1990

period mentioned is from 8th January, 1990 to 17 th January,

1990. Even the ailments mentioned in the above two certificates

are different. However, as per fitness certificate issued by the

same doctor Petitioner was fit to resume duties with effect from

22nd March, 1990. These discrepancies had remained

unexplained as during the enquiry Petitioner did not lead any

evidence in his defence. He did not produce the doctor in the

witness box during the Enquiry proceedings, inasmuch as the

Petitioner stopped appearing before the Enquiry Officer with

effect from 7th October, 1990 and was proceeded ex-parte.

Medical certificates otherwise are of no help to the Petitioner as

the same had remained unproved. Petitioner failed to apply for

leave and getting it sanctioned by the Competent Authority before

proceeding on leave. We are of the view that absence of 73 days

had remained unexplained. On subsequent two occasions also,

Petitioner remained absent for about 60 days without assigning

any reason and without obtaining leave. This shows that

Petitioner was a habitual absentee. We are of the opinion that

the Tribunal rightly observed that the Disciplinary Authority had

awarded punishment of removal from service by treating the

Petitioner as a habitual absentee and incorrigible type of person.

14. In Ex Constable Mohar Singh Vs. Union of India and Ors.

reported in MANU/DE/0818/2002 a Division Bench of this Court

held that the absence of delinquent employee for 150 days on the

alleged ground of being suffering from tuberculosis without

obtaining leave was a serious misconduct. Doctrine of

proportionality was also discussed in the said case and it was

observed as under:

"As regards the applicability of the doctrine of proportionality, having regard to the decision of the Apex Court in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386, the same is required to be considered in the light of Wednesbury Unreasonableness. Only in the event, it is found that the order of punishment is wholly irrational insofar as no reasonable person can arrive at the said finding that the Court can interfere with the quantum of punishment. Normally, neither the Tribunal nor the High Court would do so.

In Om Kumar's case (Supra), it was held:- "69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article

14.

70. In this context, we shall only refer to these cases.

In Ranjit Thakur v. Union of India, MANU/SC/0691/1987 this Court referred to "proportionality" in the quantum of punishment but the court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India MANU/SC/0118/1996 this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an

alternative penalty. It was also so stated in Union of India v. Ganayutham MANU/SC/0834/1997.

71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principle as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.""

15. From the above it is clear that the Court cannot interfere

with quantum of punishment unless it is irrational and

shockingly un-conscionable. In this case Petitioner absented

himself for a total period of about 134 days on three different

occasions without assigning any cogent reason and his this act

constitutes grave misconduct. Accordingly, punishment of

removal from service cannot be termed as irrational requiring

interference by this court.

16. Learned counsel for Petitioner has placed reliance on a

judgment rendered by the Supreme Court titled Shri Bhagat Ram

Vs. State of Himachal Pradesh and others reported in 1993 (1)

Service Law Reporter 626. We have perused this judgment and