Virender Singh vs Delhi Administration & Ors.
2013 Latest Caselaw 244 Del

$~R-41
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision: January 16, 2013


+                   W.P.(C) 4639/2001

       VIRENDER SINGH                              ..... Petitioner
               Represented by: Mr.Arun Bhardwaj, Advocate.

                    versus

       DELHI ADMINISTRATION & ORS.                ..... Respondents
                Represented by: Ms.Nandita Rao, Advocate.


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE VEENA BIRBAL


PRADEEP NANDRAJOG, J. (Oral)

1. The petitioner joined service as a Constable (Driver) with Delhi Police on February 07, 1989 and from the Summary of Allegations which preceded the formal charge being issued to him we find, a fact conceded to by learned counsel for the petitioner, that the petitioner had the habit of being unauthorizedly absent for long durations; he did so on many occasions.

2. On the fifth time, he started absenting himself from duty since December 10, 1994 and in spite of notices sent to him on December 20, 1994, January 16, 1995 and May 07, 1995, he just did not report back for duty. The last notice was sent through a personal messenger who submitted a report that the petitioner was not to be found in his house. When the

absence continued for 327 days, on October 27, 1995 the Summary of Allegations was drawn up in which it was indicated to the petitioner that his past service record would be considered.

3. With respect to the Summary of Allegations, evidence was recorded and the department examined four witnesses who, with reference to the record, proved past instances of absenteeism as also the current fact of being continuously absent and not joining back in spite of notices sent.

4. Noting the evidence recorded pertaining to the Summary of Charge a formal charge was drawn by the Competent Authority as per the indictment contained in the Summary of Allegations, but unfortunately omitted a reference to the past service record. However, at the inquiry, pertaining to the charge, witnesses deposed with reference to the past service record and considering the same penalty of dismissal from service was inflicted noting that the petitioner was an incorrigible person who would repeatedly absent himself from duty; the enquiry report being against the petitioner.

5. At the hearing today, only one submission is urged by learned counsel for the petitioner. The submission is that Rule 16(xi) of the Delhi Police (Punishment & Appeal) Rules, 1980 has been violated. The Rule reads as under:-

"16. Procedure in departmental enquiries- The following procedure shall be observed in all departmental enquiries against police officers of subordinate rank where prima facie the misconduct is such that, if proved, it is likely to result in a major punishment being awarded to the accused officer :

(i) to (x) .......

(xi) if it is considered necessary to award a severe punishment to the defaulting officer by taking into consideration his previous bad record, in which case the

previous bad record shall form the basis of a definite charge against him and he shall be given opportunity to defend himself as required by rules."

6. Learned counsel submits that since at the charge it was not indicated that past service record shall be considered, the penalty levied has to be set aside and matter remanded to the Disciplinary Authority for fresh consideration on the quantum of punishment. Counsel states that the use of the expression 'incorrigible' in the penalty order makes it clear that the Disciplinary Authority has very heavily relied upon the past service record while levying the penalty.

7. We are conscious of the legal position that where irrelevant material or a material which due to a procedural defect cannot be taken into account has been factored in a decision by the decision making authority, it being impossible for a Court to delve into the mind of the Authority and find out what would be the opinion if the irrelevant material or a material which could not be taken into account was omitted, and thus the matter has to be remanded for corrective action. But we do not do so for the reason we find that in the instant case the mandate of sub-rule (xi) of Rule 16 has been complied with in spirit. We have noted above that in the Summary of Allegations it was clearly indicated to the petitioner that his past conduct would be considered. Evidence was led at that stage pertaining to the past conduct. While drawing up the charge it got omitted to be stated that past conduct would be considered, a requirement of the sub-rule in question. But at the inquiry pertaining to the charge, evidence was led pertaining to the past conduct. The petitioner never objected to the evidence being led. Now, the object of the sub-rule is to draw to the attention of the delinquent that his past conduct (misconduct) would be considered to enable him to submit his response, whatever it could be, to the said aspect. This right has been given

to the petitioner in the instant case.

8. That apart, in the decision reported as 2007 (8) SCC 656 Govt. of A.P. v. Mohd. Tahir Ali the Supreme Court had permitted past misconduct to be considered on the subject of penalty notwithstanding same not being mentioned in the charge-sheet.

9. In a latest judgment pronounced by the Supreme Court on the subject, reported as 2010 (4) SLR 422 Indu Bhushan Dwivedi v. State of Jharkhand & Ors., evidencing a prejudice caused to Indu Bhushan Dwivedi with reference to the past misconduct being considered and with reference to the decision of the Constitution Bench of the Supreme Court reported as AIR 1964 SC 506 State of Mysore v. K.Mache Gowda, the Supreme Court had held that where the charged officer is not made known that the past misconduct would be considered, while levying penalty, the same cannot be considered.

10. In a judgment pronounced by a Division Bench of this Court on October 03, 2012 dismissing WP(C) No.6657/1999 Sunil Kumar v. UOI & Ors., a decision which was authored by one of us : Pradeep Nandrajog, J., the Bench had taken notice of the fact that Mache Gowda's case (supra) was an opinion when Article 311(2) of the Constitution of India was in the statute book pre Constitution 42nd Amendment Act 1976. The Division Bench had noted the change in the constitutional perspective on the subject of a show cause notice with reference to the proposed penalty levied. In other words the opinion expressed was that unless prejudice caused is shown, as was the situation in Indu Bhushan's case (supra), the law declared in Machin Gowda's case (supra) would no longer hold the field because of the Constitution being amended and the correct legal position would be to follow the law declared by the Supreme Court in Mohd. Tahir Ali's case (supra).

11. Highlighting once again that the penalty levied upon the petitioner was for the misconduct of continuous 327 days' unauthorized absence and finding no prejudice caused to the petitioner in that the charge not lists that past misconduct would be considered and the fact that the Summary of Allegations so listed; and that post charge evidence of past misconduct was led and in the Inquiry Officer's report found a mention, which report was submitted to the petitioner for his response before penalty was levied, we dismiss the writ petition but without any order as to costs.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 16, 2013//dk//