Mukesh Kumar vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 3729 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Date of decision: 4th August, 2011

+                         W.P.(C) 11121/2004

        MUKESH KUMAR                                    ..... Petitioner
                          Through:   Mr.Anil Singhal, Advocate

                     versus

        GOVT. OF NCT OF DELHI & ORS.         ..... Respondents
                      Through: Ms.Pooja Aganpal, Advocate


        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SUNIL GAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J.

CM Nos.11323/2011, 11324/2011 & 11325/2011

1. The writ petition was dismissed in default on 19.8.2010. A belated application, being CM No. 11323/2011 has been filed praying that order dated 19.8.2010 be recalled and writ petition be heard on merits.

2. Vide other two civil miscellaneous applications, delay in

filing and delay in refiling is prayed to be condoned, which delay is cumulative spanning 285 days.

3. On the express assurance of learned counsel for the petitioner that he would argue the writ petition today itself, we dispose of all the civil miscellaneous applications condoning the delay in filing as also the delay in refilling CM No.11323/2011 and disposing of said civil miscellaneous application by recalling the order dated 19.8.2010.

W.P.(C) No.11121/2004

1. Petitioner was a Constable with Delhi Police and was posted at PS Gandhi Nagar. His request to undertake a refresher course for 40 days which had to commence on 1.9.1998 was accepted and he was relieved from duties with permission granted to join the course. Needless to state after the course was over petitioner was to report back at PS Gandhi Nagar.

2. Petitioner joined back after 9 months and 7 days and it was found that the petitioner had not even joined the refresher course.

3. When questioned about his absence he stated that he had met with an accident on 29.9.1998 and was admitted at GTB Hospital.

4. But, he gave no explanation as to what was he doing between 1.9.1998 till 29.9.1998, and from mid October 1998, since he was discharged from hospital after 15 days.

5. Since the petitioner could not give a valid explanation on the administrative side, a charge sheet was issued and served upon him alleging the misdemeanor of not reporting for the refresher course and willfully absenting unauthorizedly.

6. Enquiry Officer was appointed. The petitioner participated before the Enquiry Officer. Ct.Ashok Kumar PW-1 proved Ex.PW1/A being the permission granted on 29.8.1998 for petitioner to join the refresher course w.e.f. 1.9.1998. Ct.Dayawati PW-2 proved Ex.PW2/B, being the joining report when petitioner reported at the police station on 7.6.1999. SI Balwant Singh PW-3 proved Ex.PW3/C being the order of the DCP (East) permitting the petitioner to join the refresher course for 40 days. Inspector Tuki Ram PW-4 deposed that he was the incharge of the 4th Battalion DAP where a 40 days' refresher course commenced from 1.9.1998 and that the petitioner never participated in the course.

7. Thus there is sufficient evidence to establish that the petitioner was relieved to join the refresher course commencing from 1.9.1998 and he did not join the refresher course. There is sufficient evidence to prove that petitioner reported back after 9 months and 7 days.

8. Petitioner examined 3 witnesses in defence. Sunil Kumar DW-1 deposed that upon receiving information of his brother being injured at an accident on 29.9.1998 he went to GTB hospital where his brother was admitted and that his brother

remained in the hospital for 15 days. ASI Anjana Kumari DW-2 deposed that Ct.Rishi Pal had informed her of petitioner being injured on 29.9.1998 and for which she had made DD entry No.15B. Ct.Rishi Pal DW-3 deposed that he was on duty at GTB hospital and that on 29.9.1998 petitioner was admitted at the hospital being injured.

9. Relevant would it be to note that the petitioner led evidence of being injured on 29.9.1998. What was he doing between 1.9.1998 till 29.9.1998? Nothing has been spoken about. Further, as per the testimony of the brother of the petitioner, petitioner remained admitted at GTB hospital for only 15 days. The accident took place on 29.9.1998. What was petitioner doing after 15.10.1998? No explanation.

10. Learned counsel for the petitioner has referred to Annexure P-2, being a photocopy of OPD card dated 1.9.1998, on which it stands recorded that the petitioner has been advised bed rest for 15 days and medicine has been prescribed. We have asked learned counsel whether OPD card was proved before the Enquiry Officer. Counsel concedes that it was not even filed.

11. The document is useless for the reason it is easy for anybody to visit a government hospital and pick up an OPD card and thereon write the prescription. Petitioner had an opportunity to prove the same at the enquiry. He did not do so. He cannot use it now. It is an unproved document.

12. In any case, there is just no material showing any kind of

infirmity after 15.10.1998, which prevented the petitioner to report for duty.

13. We may note that the Enquiry Officer indicted the petitioner and as a result thereof, vide order dated 5.1.2000, the disciplinary authority levied the penalty of removal from service. Appeal failed. Petitioner's challenge vide OA No. 515/2003 before the Central Administrative Tribunal has failed when the said application was dismissed vide order dated 28.10.2002.

14. For the reasons stated hereinabove, we find no error committed by the Tribunal nor do we find any error committed by the Tribunal when it refused review vide order dated 18.9.2003.

15. As a member of disciplined police force actions of the petitioner are highly deplorable. Assuming he was unwell, it was his duty to inform the department and get himself examined at a government hospital and submit proof thereof to the superior officer. The petitioner could not unilaterally sit back assuming he was unwell.

16. We are noticing a trend of government servants being extremely callous and negligent in their official dealings. This is probably the 150th case we have come across where a government servant has just sat in his house. They think they can join duties at their leisure and pleasure. Such callous behavior warrants no sympathy. Thus argument that the petitioner was merely aged 32 years should be factored as a consideration of compassion is rejected. We would highlight that the conduct of

the petitioner has been far from good. It may be noted that when the enquiry commenced, it was with great difficulty that the petitioner could be served. He was not found in his house.

17. The writ petition is dismissed but we refrain from imposing any cost; not because the petitioner had an arguable point to urge but for the reason he is without job.

(PRADEEP NANDRAJOG) JUDGE

(SUNIL GAUR) JUDGE

August 04, 2011 rs