Delhi High Court

Ram Niwas Meena vs Gnct Of Delhi And Anr on 6 February, 2014

Author: Deepa Sharma

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 792/2014
%                                  Date of decision: 06th February, 2014
       RAM NIWAS MEENA                                     ..... Petitioner
                          Through:       Mr.Sachin Chauhan, Advocate


                          versus


       GNCT OF DELHI AND ANR.                  ..... Respondents
                     Through: Ms.Megha Bharara for Ms.Ruchi
                              Sindhwani, Advocate for GNCTD.


       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MS. JUSTICE DEEPA SHARMA

       DEEPA SHARMA, J. (Oral)

1. Vide separate order passed today we have dismissed the writ petition.

We now record our reasons for the same.

2. The petitioner joined Delhi Police as a Constable in the year 2001 and

after serving for about seven years, he appeared in the examination for

recruitment to the rank of Sub-Inspector (SI) in Delhi Police and was

selected for appointment. He joined Police Training College on 22 nd July,

2008. While undergoing the basic training at the institution in batch no.33,

the petitioner proceeded on one day Casual Leave on 22nd October, 2008 but

instead of returning back on duty on 23rd October, 2008, he absented and

joined the training programme after 29 days, 9 hours and 30 months. He

submitted medical certificate for the period of absence from an authorised

medical officer. No action was proposed against him at that time.

3. On 22nd June, 2009, he again absented himself from the training

institution. Since he fell short of attendance, he was re-batched vide order

dated 9th September, 2009 with the next batch of PSIs of Delhi Police. Vide

order dated 22nd October, 2009, he was directed to report at once. The

petitioner resumed his training only on 24th February, 2010 after a lapse of

08 months, 01 day, 21 hours and 30 minutes.

4. In these circumstances a departmental enquiry was initiated against him

on the following charges:

"C H A R G E

I, Mahesh Batra, ACP/I.T./PTC charge you PSI Ram Niwas Meena, No.D-4126 that while undergoing your basic training at PTC, Jharoda Kalan (Batch No.33), proceeded on one day C.L. on 22.10.2008 and had to join your training on 23.10.2008. But you neither reported yourself for training nor sent any intimation to this Institution on the due date. Thus, you were marked absent vide DD No.51 dated 23.10.2008. An absentee notice was issued to you at your given residential address i.e. Vill. Bajeedpur, P.O.Barria Via Kurgaon Teh. & Distt. Karauli (Rajasthan)

vide this office No.2242/Trg. Br./PTS/Wazirabad dated 03.11.2008 with the direction to resume your duties at-once failing which necessary disciplinary action will be initiated against you. Lastly, you resumed your duty on 22.11.2008 vide DD No.50 after absenting yourself wilfully and unauthorisedly for a period of 29 days, 9 hours & 30 minutes and submitted medical certificate to cover up your absence period.

On 22.06.2009, you again absented yourself from training programme wilfully, unauthorisedly and as such, were marked absent vide DD no.29-B dated 22.06.2009, PTC, Jharoda Kalan, Delhi.

Since you were disqualified to appear in the final examination due to short of attendance, you were re-batched vide this office order No.12201-216/Exam.Cell/PTC dated 9.9.09 with the directions to undergo your basic training i.e. Indoor/Outdoor with next batch of PSIs (batch no.34) of Delhi Police. Accordingly, you were directed vide this office memo. No.3854/Trg. Br.(D-II)/PTC dated 22.10.2009 to join this Institution for your basic training with batch no.34 of Delhi Police but you failed to do so. Lastly, you joined your training on 24.02.2010 vide DD no.14-B after absenting yourself wilfully & unauthorisedly for a period of 8 months, 1 day, 21 hours and 30 minutes.

As per S.O.No.291/2008 {Para-11(i)}, more than 14 days continuous unauthorised absence from the daily outdoor/indoor programme by the PSI shall be sufficient ground for initiating disciplinary action against the PSI, whereas in the instant case, you, PSI Ram Niwas Meena, No.D-4126 had absented yourself for a period of 9 months, 1 day & 7 hrs. on two different occasions.

The wilful and unauthorised absence from Govt. duties/training during the initial stage of training amounts to gross misconduct, highly indiscipline, and not likely to

become a good police officer which renders you liable for punishment under the provisions of Delhi Police (Punishment & Appeal) Rules-1980.

Sd./-

(ENQUIRY OFFICER)"

5. The enquiry was entrusted to ACP Mahesh Batra. On conclusion of

the enquiry, report was furnished to the disciplinary authority. The Enquiry

officer concluded that the charges of unauthorised absence during basic

training stood proved. A copy of the findings of the enquiry officer was

issued to the petitioner on 15th July, 2010 giving him opportunity to submit

his written representation/submission against the findings of the enquiry

officer within 15 days from the date of its receipt. It was duly served on him

at his native place Village Bajeer Pur, P.O.Barria Via Kurgaon Teh. & Distt.

Karauli (Rajasthan) through a special messenger. The petitioner, however,

did not submit any representation. He was also given three opportunities to

appear before the disciplinary authority but he failed to avail the same. A

Special messanger was sent to his native place to inform him of the various

dates fixed for his appearance. After assessing the enquiry report, the

statements of PWs and the other documents on record, the disciplinary

authority concurred with the findings of enquiry officer and terminated the

services of the petitioner.

6. The petitioner was given full opportunity to participate in the enquiry.

The enquiry record shows that four witnesses were examined by the

department. The petitioner did not cross-examine them despite opportunity.

He also did not produce any defence witnesses. He, however, filed his

defence statement.

7. The petitioner thereafter filed the statutory appeal which in the above

circumstances was dismissed vide order dated 25th November, 2011.

8. The petitioner thereafter challenged the order dated 13th January, 2011

of the disciplinary authority and the order dated 25 th November 2011 of the

Appellate Authority by way of O.A.No.1527/2012 which was dismissed

vide order dated 11th December, 2013. The petitioner has challenged this

order in this writ petition.

9. The main argument of petitioner is that his illness had prevented him

from attending the training and that this fact can be ascertained from his

medical certificates furnished by him. The petitioner submits that the

Tribunal also did not found any defect in the certificates. It is argued that in

view of his medical certificates and the fitness certificates, his absence from

duty period ought to have been regularised. It is argued that his absence was

not wilful and was under these forced circumstances. Our attention has been

drawn by the petitioner towards the medical certificates of his illness and

fitness, copy whereof has been placed on record by the petitioner along with

this petition.

10. Admittedly the petitioner had remained absence from his training on

two occasions, firstly, from 23.10.2008 to 21.11.2008 for 29 days and

secondly, from 22.06.2009 to 23.02.2010 that is for more than 8 months

totalling for about 270 days. It is also admitted that during the entire period

of his absence he did not sent any communication to his department. He did

not apply for leave or extension of leave. It is also an admitted fact that

when the petitioner had started absenting, the respondents had sent

communications to him, asking him to join his training and he had to be re-

batched for the next batch on account of the shortage of attendance which

prevented him from appearing in the examination along with his batch

mates.

11. The perusal of medical certificates on record shows that the medical

certificates pertain to the period of his absence for the period 22.6.2009 to

23.2.2010. The first medical certificate has placed on record by the

petitioner is dated 8th July, 2009 whereas the petitioner had absented himself

from duty on 22.6.2009. There is no medical certificate for the period from

22.6.2009 to 8.7.2009. This medical certificate dated 8th July, 2009 shows

that the petitioner had been suffering from diarrhoea and for his recovery

from this ailment he needed seven days absence. The subsequent medical

certificate dated 15.7.2009 also shows that the petitioner had been suffering

from diarrhoea and again needed seven days absence. On 22.7.2009, he was

apparently suffering from Typhoid and again absence of 15 days was

necessary for his recovery. The subsequent medical certificates dated

6.8.2009, 13.8.2009, 20.8.2009, 4.9.2009, 8.9.2009, 23.9.2009, 30.9.2009,

7.10.2009, 22.10.2009, 6.11.2009, 22.11.2009, 28.11.2009, 3.1.2010,

18.1.2010 and 25.1.2010 show that the petitioner had been suffering with

Typhoid. As per these certificates the petitioner was thus suffering from

typhoid for a period of eight months. No blood test reports or bill of

purchase of medication is available. It is also strange that the medical

certificate dated 5.12.2009, 20.12.2009, 27.12.2009, 1.2.2010, 16.2.2010

and 23.2.2010 although prescribed that absence was necessary for the

petitioner for his recovery but do not disclose the nature of illness. We find

it unreasonable that a person who had been suffering continuously with

typhoid since 22.7.2009 and continued to suffer for about eight months, did

not even think of consulting any other doctor or Hospital. Apparently, the

treatment of typhoid under Dr.J.C.Yadav was not helping him. The

petitioner still continued his treatment with the same doctor with no sign of

recovery. We are very sure that no reasonable prudent man would continue

his treatment for months together with the doctor whose treatment is not

curing a curable disease. He would certainly prefer, either to change doctor

or consult an expert. This creates genuine doubts about the genuiness of

illness of the petitioner.

12. This view is confirmed by the fact that in the petitioner‟s

representation against the main order of punishment dated 13.01.11

submitted on 17.2.2011 to the Commissioner of Police, the petitioner has

taken the plea that on 22.6.2009, when he got the information that his wife

had suffered a mental fit, he rushed to his home and there he had himself

fallen sick. He was taken to Government Ayurvedic Hospital, Shahpur,

District Alwar, Rajasthan where the doctor had started his treatment for

„utter depression‟. His plea was that he was given treatment of disease

called „utter depression‟. As against this plea he has produced the medical

certificates of diarrhoea and typhoid. In the light of these facts, the

conclusion of the disciplinary authority and the findings of the Tribunal

cannot be faulted with.

13. The petitioner has also challenged the order of the Tribunal on the

ground that issue of quantum of punishment raised by him in his petition had

not been dealt with. This aspect of the argument of the petitioner has been

dealt with by the Tribunal and following findings have been given:

"The third ground raised by the learned counsel for the applicant is that the applicant in his representation to the AA has raised the issue of quantum of punishment imposed on him to be excessive compared to the lapse on his part. A plain reading of the appeal submitted by the applicant, which is undated but annexed as Annexure A-7 to the OA shows that it does not specifically raises the issue of quantum of punishment. The prayer is limited to his restoration in service as SI in Delhi Police. The order of the AA, therefore cannot be faulted on the ground of not having addressed the plea raised in the appeal submitted by the applicant."

From the above discussion, we are of the view that the conclusions of

the Tribunal does not suffer with any infirmity.

14. The petitioner was serving as Constable for the last seven years when

he had appeared in the examination for recruitment to the rank of Sub

Inspector (SI) in Delhi Police and was selected and joined the Delhi Police

Training College on 22.7.2008. He being a member of a disciplined force

was very well aware of all the rules and regulations of his service.

15. The petitioner was on probation during the training and therefore, at

the relevant time Standing Order no.291/2008 was binding on him. The

S.O.No.291/2008 reads as under:

"11. CAUTION In order to eliminate unsuitable trainees at the stage of training itself, any one of the following grounds shall be sufficient for initiating of disciplinary action and or termination of service by the competent authority:-