Rajender Singh vs Uoi & Ors.
2013 Latest Caselaw 5605 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment Reserved on: October 22, 2013
                                  Judgment Pronounced on: December 03, 2013

+                               R.P.532/2013 in WP(C) 1354/2002

        RAJENDER SINGH                                    .....Petitioner
                Represented by:            Mr.Shanker Raju, Advocate with
                                           Mr.Nilansh Gaur, Advocate

                                          versus

        UOI & ORS.                                        .....Respondents
                  Represented by:          Ms.Richa Kapoor, Advocate with
                                           Ms.Saahila Lamba, Advocate for
                                           R-1
                                           Mr.Anuj Tyagi, Advocate with
                                           Mr.Sachin Chopra, Advocate for
                                           R-2 and R-3

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR.JUSTICE V.KAMESWAR RAO

PRADEEP NANDRAJOG, J.

1. Seeking review of our order dated September 23, 2013, drawing attention of this Court that while penning the opinion the Court overlooked Rule 8(a) and Rule 10 of the Delhi Police (Punishment & Appeal) Rules, 1980, it is additionally urged that when learned counsel for the petitioner opened arguments with reference to the law declared by the Supreme Court in the decision reported as 2004 (4) SCC 560 Bhagwan Lal Arya Vs. Commissioner of Police as also (2009) 15 SCC 62 CMD Coal India Ltd. Vs. Mukul Kumar Choudhary & Ors., the Court

terminated hearing by putting a query as to the number of years petitioner had served when penalty was inflicted.

2. Our decision dated September 23, 2013 notes that the petitioner started unauthorizedly absenting himself from duty from the intervening night of 11th and 12th May, 1996 and this was noted when he did not report for duty at the PCR Van 'R-65', a fact recorded in DD No.7 dated May 11, 1996. We have also noted that in spite of 2 absentee notices dated May 28, 1996 and May 31, 1996 served at his residential address, the petitioner did not report for duty. He continued to remain absent till when on June 03, 1996 the Competent Authority decided to initiate disciplinary proceedings. The order also records that even during the inquiry period the petitioner continued to be absent from duty. We have noted that when the Inquiry Officer served a notice upon the petitioner requiring him to join inquiry proceedings on June 11, 1996, he sent a letter giving reason of being sick for not being able to present himself before the Inquiry Officer and enclosed a medical certificate dated June 11, 1996 issued by GTB Hospital Shahdara as per which petitioner was suffering from viral fever and was advised bed rest for 5 days. We have noted that in view thereof the Inquiry Officer postponed the hearing at the inquiry for June 17, 1996 under intimation to the petitioner. The petitioner did not appear and thus the summary of allegations with accompanying documents were sent at the residential address of the petitioner where, in his absence the same were received by his brother named Jitender Singh on June 24, 1996. We have noted that probably for the reason petitioner's brother received the summary of allegations and the accompanying documents the Inquiry Officer got re-service effected by pasting on June 26, 1996. The order records that in the meanwhile on

June 24, 1996 the Inquiry Officer received following three documents from the petitioner:-

"(a) A medical certificate dated June 11, 1996 purportedly issued by Medical Superintendent, Upgraded Primary Health Centre, Baghpat, Meerut which recorded that the petitioner was suffering from viral fever and was not in a position to join duty for the period from May 13, 1996 to June 10, 1996.

(b) A medical slip dated May 13, 1996 purportedly issued by Medical Superintendent, Upgraded Primary Health Centre, Baghpat, Meerut which recorded that the petitioner was suffering from viral fever and is advised bed rest for a period of four weeks.

(c) An undated medical certificate purportedly issued by Shanti Bhawan Health Centre, Meerut which recorded that the petitioner was admitted at the said centre on June 15, 1996 for treatment of „Diarrhea Vomit‟ and was in need of rest for a period of 15 days."

3. The order records that being of the opinion that there was no justifiable reason for the petitioner not to participate at the inquiry proceedings and the medical documents submitted were not creditworthy the Inquiry Officer proceeded ex-parte against the petitioner and examined three witnesses of the prosecution and in light of the evidence led framed a charge which was received by the petitioner, the charge mirroring the summary of allegations i.e. that the petitioner was unauthorizedly absenting himself from duty. The order records that at that stage the petitioner participated at the inquiry and while admitting absence and denying the same being unauthorized; furnishing a justification for the same he pleaded sickness and examined one Dr.Om Prakash as DW-1 who proved two medical certificates.

4. We have thereafter discussed the creditworthiness of the medical record relied upon by the petitioner and have returned a finding that the same was rightly rejected by the Inquiry Officer. This discussion is to be found in paragraphs 37 to 40 of our decision under review.

5. Our decision would reveal that the contention of the petitioner on the subject of proportionality of the penalty has been noted, albeit without referring to Rule 8(a) and Rule 10 of the Delhi Police (Punishment & Appeal) Rules, 1980. We have noted the fact that the authorities had taken cognizance of the fact that on May 04, 1996 an FIR No.331/1996 had been registered for offences punishable under Sections 384/506/34 IPC PS: Hauz Khas in which petitioner was arrested on July 04, 1996 and had remained in judicial custody till August 05, 1996. We had thereafter noted that it was not a simple case of unauthorized absence but also a case of procuring false medical certificates of which one good proof would be that since July 04, 1996 till August 05, 1996 the petitioner was in custody and absence for said period could not be attributed to any sickness.

6. Noting that the petitioner was acquitted at the criminal trial, highlighting that said fact was irrelevant because the charge against the petitioner was of unauthorized absence, while dismissing the writ petition on the subject of proportionality we had observed, in paragraphs 41 to 46 as under:-

"41. We now deal with the last submission on the subject of proportionality of the penalty imposed.

42. The period of unauthorized absence commences on May 11, 1996 and ends on August 06, 1996.

43. The period may not be too long, but it has to be kept in mind that the absence was not on account of any medical

infirmity suffered by the petitioner but was on account of the petitioner being involved in some anti-social activities evidenced by the fact that he was an accused in FIR No.331/1996 dated May 04, 1996 for offences punishable under Sections 384/506/34 IPC PS Hauz Khas and was arrested on July 04, 1996 and remained in jail till August 05, 1996. The fact that the FIR was registered on May 04, 1996 cannot be lost sight of. It is evidently a case where feeling the heat of being arrested the petitioner absconded and thereby absented himself from duty on May 11, 1996 and contrived medical documents which falsely recorded he being medically unfit. It is relevant to note that on June 24, 1996 the summary of allegations were received by petitioner‟s brother in his house and the petitioner was not in his house. Further, if the petitioner who resides in Meerut could go to Guru Teg Bahadur Hospital at Shahdara Delhi on June 11, 1996, we see no reason why he could not at least visit the police station to which he was attached and formally apply for leave to be sanctioned.

44. It may be true that the writ petitioner has ultimately been acquitted by the learned Metropolitan Magistrate, but that would be irrelevant for the reason we are concerned with the reason for the unauthorized absent and the conduct of the petitioner to contrive documents of sickness.

45. Standard of devotion to duty by a person who wears a uniform has to be at a higher pedestal and where there is not only an unauthorized absence from duty but additionally there is contrivance in the form of creating false documents to project a defence and a police personnel is found to be using the same as a cloak to hide abscondance, it cannot be said that a penalty of dismissal from service is so shockingly disproportionate to the gravity of the offence that a Writ Court should interfere.

46. Accordingly, we dismiss the writ petition noting further that no arguments were advanced on the plea taken before the Disciplinary and the Appellate Authority that by recording evidence of the departmental witnesses after serving the summary of allegations firstly upon petitioner‟s brother and thereafter by pasting, the petitioner was denied a fair opportunity of defence. The reason could be that the departmental witnesses simply proved the petitioner being

absent from duty from May 11, 1996, a fact which petitioner admitted. Since the defence was that the absence was on account of medical infirmity, the petitioner had to prove the same. In other words, in view of the defence taken the Department was not obliged to lead any evidence to prove any fact. With respect to the defence, the petitioner joined the enquiry and led evidence."

7. Rule 8(a) and Rule 10 of the Delhi Police (Punishment & Appeal) Rules, 1980 read as under:-

8. Principles for inflicting penalties -

(a) Dismissal/Removal - The punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.

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."

8. The decision relied upon in Bhagwan Lal Arya's case simply states that the said Rules justify termination of service as a last resort only if opinion formed is that the misconduct is grave and is of a kind wherefrom it could be inferred that the delinquent is incorrigible and completely unfit for police service.

9. Our decision has adverted to said aspect of the matter by highlighting that it was not a simple case of unauthorized absence. We have highlighted that the unauthorized absence was due to petitioner absconding when he was named as an accused in an FIR. He was not to be found in his house, where he was expected to be present if he was

indeed unwell. Either his brother was receiving the documents at his house or they had to be pasted. We have highlighted the comments of the Inquiry Officer justifying an inference that the petitioner had obtained contrived documents and therefrom the misconduct being required to be considered in the enwombing circumstance of a justification based on contrived evidence. We had highlighted that the nature of delinquency needs to be considered on case to case basis.

10. Dismissing the review application we highlight that though we may not have adverted to the expressed language of Rule 8(a) and Rule 10 of the Delhi Police (Punishment & Appeal) Rules, 1980, the requirement of the two Rules with respect to the misconduct being grave was factored by us in our decision under review.

11. Accordingly, we dismiss the review application but without any orders as to costs.

(PRADEEP NANDRAJOG) JUDGE

(V.KAMESWAR RAO) JUDGE DECEMBER 03, 2013 mamta