Ex.Constable Dalbir Singh vs Uoi & Ors.
2013 Latest Caselaw 3605 Del

$~R-97
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of Decision: August 14, 2013

+                  W.P.(C) 2619/2002

      EX.CONSTABLE DALBIR SINGH               .....Petitioner
              Represented by: Mr.Arun Bhardwaj, Advocate

                                  versus

      UOI & ORS.                                     ..... Respondents
                Represented by:        Ms.Anuja Saxena, Advocate with
                                       Mr.Yogesh Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR.JUSTICE V.KAMESWAR RAO

PRADEEP NANDRAJOG, J. (Oral)

1. Heard learned counsel for the parties. Record of inquiry perused.

2. The petitioner does not dispute the fact that working as a Constable (Driver) with Delhi Police he was supposed to be driving a PCR Van No.V-35 and was detailed for night duty in the intervening night of 4 th and 5th April, 1993 and thus was marked absent as recorded in DD No.29 dated April 04, 1993. The petitioner also does not dispute the fact that he did not join duty nor sent any intimation for the reason of his absence nor sent any application seeking leave on medical grounds till he was dismissed from Service vide order dated February 28, 1994 i.e. he continued to remain absence without leave or sanction for 11 months.

3. The department sent three absentee notices dated April 26, 1993, May 17, 1993 and July 29, 1993, all of which were sent by a Special

Messenger to the residence of the petitioner which he disclosed when he joined service i.e. village Bidhal, District Sonepat, Haryana. All three were received by a person who signed 'D.Singh'.

4. As per Delhi Police (Punishment & Appeal) Rules 1980 the procedure for a disciplinary proceeding is to issue a Summary of Allegations followed by recording evidence of the department and if in view of the evidence recorded case is made out, to frame a charge. Evidence recorded pursuant to Summary of Allegations is treated as evidence pertaining to the charge. The delinquent is given further opportunity to recall and further cross-examine the departmental witnesses as also to lead defence evidence.

5. The record produced would reveal that the Summary of Allegations was drawn up pertaining to the wrong of continuous unauthorized absence without leave sanctioned and in spite of call-up notices not reporting back, which was delivered at the residence of the petitioner on November 25, 1993. The Summary of Allegations is accompanied by a list of witnesses and list of relied upon documents. The same have been sent under a covering letter on which we find that there is an endorsement by one 'D.Singh' in token of acknowledging receipt of three papers being the covering letter, Summary of Allegations and list of witnesses and relied upon documents.

6. The record would reveal that on the date notified for appearance before the Inquiry Officer which was indicated to the petitioner in the covering letter enclosing the Summary of Allegations, list of witnesses and list of relied upon documents the petitioner did not appear and thus the Inquiry Officer examined the three departmental witnesses who

proved: the petitioner deputed for duty requiring him to drive the PCR Van and DD No.29 recording his absence; the three call-up notices dated April 26, 1993, May 17, 1993 and July 29, 1993, Ex.PW-2/A, PW-2/B and Ex.PW-2/C.

7. Keeping in view the evidence led a decision was taken that a case was made out to frame a charge and thus as required by the Delhi Police (Punishment & Appeal) Rules, 1980 a charge was framed on December 28,1993. The charge reflected the Summary of Allegations and additionally intimated that the previous record would also be considered. The charge dated December 20, 1993 was sent at the aforenoted address of the petitioner where it was received on December 24, 1993 and we find that signatures of the recipient are the same as we find on the previous documents i.e. somebody who signs 'D.Singh'.

8. The petitioner did not respond even to the charge. The record would reveal that the Inquiry Officer completed the proceeding ex parte and submitted a report which was to the effect that the charge of unauthorized absence which continued till when the report was furnished stood proved. The report is dated December 31, 1993. The record would reveal that the report of the Inquiry Officer was sent to the petitioner under cover of a letter dated January 04, 1994 and one person, whose name is not clear but whose designation was an Inspector Motor Transport/PCR personally went to the village of the petitioner and record would further reveal that the said Inspector has made a report that he has delivered a copy of the report of the Inquiry Officer to the petitioner against proper signatures. On the said document there is an endorsement to the effect : 'Received copy' followed by signatures of the same

'D.Singh' which we find is identical as on the previous documents referred i.e. the three call-up notices, the covering letter under which Summary of Allegations was sent as also the charge. It bears the date January 14, 1994. It is apparent that 'D.Singh' who had been receiving the call-up notices, and who received the Summary of Allegations as also the charge and the report of the Inquiry Officer is none else other than the petitioner.

9. Proceeding further ahead, we find that no response was sent by the petitioner to the report of the Inquiry Officer resulting in the disciplinary authority passing an order dated February 28, 1994 inflicting the penalty of dismissal from service recording in the order that the Summary of Allegations was served upon the defaulter on November 25, 1993 and a copy of the charge was thereafter received by his wife on December 24, 1993. Recording further that findings of the Inquiry Officer were received by the delinquent on January 14, 1994. The order records that till when the order was passed i.e. February 28, 1994, the unauthorized absence which commenced on April 04, 1993 continued.

10. The petitioner took a rear-guard action by filing an appeal. The appeal was filed beyond the time prescribed as per the Rules and thus was summarily rejected by the appellate authority on December 12, 1994 as being barred by limitation.

11. The petitioner preferred a revision in which he took a stand that he and his wife, while travelling together, met with an accident on April 04, 1993 and as a result whereof his wife died and he was seriously injured to an extent that he lost the mental balance.

12. Since till when the revision was filed the petitioner had not been

responding to either the call-up notices or to the Summary of Allegations nor to the charge issued against him, and it was only for the first time the plea of compassion and pity, with reference to his wife dying at an accident and he being seriously incapacitated was pleaded, the revisional authority called for an inquiry to be made. The reason was obvious. If the petitioner was claiming helplessness, it made logic for the revisional authority to act with compassion. It was in this context that an inquiry was got conducted whether the stand of the petitioner was correct. This inquiry had not to be akin to an inquiry pursuant to the issuance of charge-sheet for the reason the purpose of the inquiry was beneficial i.e. to find out the correctness of the stand taken by the petitioner as to why he remained absent and further with a justification as to why he did not respond to the call-up notices and the charge issued against him. The officer appointed by the revisional authority i.e. the Commissioner of Police, went to the village of the petitioner and found out that petitioner's wife had died but not as a result of an accident. She had died due to a fall injury in the house. She fell from the staircase. As regards the petitioner the only evidence he could find was petitioner taking treatment from a Unani Dispensary at Najafgarh, Delhi. Needless to state, paper regarding the treatment taken from Unani Dispensary at Najafgarh were furnished by the petitioner.

13. The revisional authority rejected the revision observing that the stand taken by the petitioner, of being mentally incapacitated, was not genuine. The treatment from the Municipal Dispensary at Najafgarh made it obvious that if at all the treatment was taken, it was for a minor ailment. The non-seriousness of the sickness was evidenced from the fact

that the medical papers would evidence the petitioner taking treatment as an Out Patient.

14. The petitioner's march before the Tribunal has resulted in failure. The Original Application filed has been dismissed vide order dated March 23, 2001.

15. We note the arguments advanced and would simultaneously be dealing with the same.

16. It is firstly urged that the disciplinary authority has incorrectly recorded that the wife of the petitioner had received a copy of the charge on December 24, 1993, because his wife had died earlier.

17. It may be true that the wife of the petitioner died prior to December 24, 1993 and to said extent the narration of fact by the disciplinary authority that the petitioner's wife received the charge on December 24, 1993 is incorrect. However, it makes no difference. From the facts noted hereinabove, we find that the three call up notices, the Summary of Allegations, the charge-sheet as also the report of the disciplinary inquiry have been received by the same person who signs 'D.Singh'. The petitioner's name is Dalbir Singh. As we have noted above, Inspector MT/PCR who went to serve the report of the Inquiry Officer at the residence of the petitioner has recorded that he has served the same upon the petitioner and beneath the same we find an acknowledgment of receipt with signatures 'D.Singh', which happen to be the same signatures we find on the three call-up notices, Summary of Allegations and the charge.

18. There is thus sufficient presumptive evidence that the petitioner was himself receiving every document which were being sent to him.

19. That apart, the petitioner has to explain what was he doing sitting in his house. The petitioner tries to explain that he along with his wife met with an accident which was serious and since his wife died he was mentally incapacitated due to grief and injuries.

20. There is no evidence that the petitioner and his wife suffered at a road accident. The petitioner states that since the driver of the motor vehicle happened to be a co-villager the village panchayat intervened and got the matter resolved. Well, if this is true, it cuts at the plea taken by the petitioner that as a result of accident he was mentally incapacitated. He could not simultaneously be incapacitated and yet be under the influence of the village panchayat to record a settlement. That apart, if the petitioner had suffered a serious accident occasioned by a Truck hitting him and his wife, we would have found petitioner admitted at a proper hospital and receiving treatment. The petitioner would not have been receiving treatment as an Out Patient at a Unani Municipal Dispensary in Najafgarh. Further, the petitioner claims that he and his wife were hit by a truck in the village. His village Bidhal is in District Sonepat. It remains a mystery as to why petitioner would be taken treatment from a Municipal Unani Dispensary in Najafgarh at Delhi.

21. The next contention urged is that that the Summary of Allegations did not communicate to the petitioner that his past record would be considered.

22. Now, it is settled law that a past conduct of a delinquent can be considered by the disciplinary authority after putting the delinquent to notice thereof. A past conduct is not a charge which needs to be proved. It is a conduct which needs to be brought to the notice of the delinquent

informing that if for the instant misdemeanor he is indicted, the past conduct would be considered. Thus, it matters not whether the past conduct was made a part of the Summary of Allegations.

23. It is then contended that the revisional authority went about conducting an inquiry behind the back of the petitioner with reference to petitioner defence as to why he was absent.

24. We have already noted hereinabove that the revisional authority conducted an inquiry into the justification given by the petitioner as to why he remained absent and by way of any requirement of the law. In fact the revisional authority need not have even attempted to find out whether what the petitioner was saying in the revision petition was true because the defence by way of justification for the unauthorized absence had to be firstly pleaded and thereafter made good by leading evidence before the Inquiry Officer. As is to be noted from the facts noted hereinabove, the petitioner never responded with respect to the justification of his absence till when he filed the revision. It was only at the stage of revision that the petitioner took up the plea that he and his wife met with a fatal accident at which his wife died and he received grievous life threatening injuries to an extent he lost his mental balance. It was in said context and with reference to papers given by the petitioner in justification of his stand that the revisional authority got conducted an inquiry.

25. We ignore the inquiry conducted by the revisional authority. The petitioner had to justify his absence. It is not in dispute that till he was visited with the penalty the petitioner never sent any application seeking leave on medical grounds. The petitioner has relied upon certain postal

certificates evidencing communications sent under 'UPC' and we all know how easy it is to procure 'UPC' from Post Office in India. Before bringing the curtains down, we would be failing not to note that the petitioner joined service as a Constable (Driver) on June 14, 1988 and before the penalty of dismissal from service was inflicted upon him in the year 1994, in short span of six years the petitioner had been unauthorisedly absent on as many as 13 occasions and had been awarded major and minor punishments, a fact recorded by the revisional authority while dismissing the revision petition filed by the petitioners.

26. We dismiss the writ petition but refrain from imposing any costs for the reason the petitioner is without a job.

(PRADEEP NANDRAJOG) JUDGE

(V.KAMESWAR RAO) JUDGE AUGUST 14, 2013 skb