G. George Paracken:
1. The applicant in this case is the legal heir and widow of Shri Madho Singh, Ex-Constable in Delhi Police who was dismissed from service on 10.03.2011 and later died on 16.07.2011. Her grievance is against the Annexure A-1 findings of the inquiry officer dated NIL holding that the charge of habitual absence against her late husband was proved, the Annexure A-2 order of the disciplinary authority dated 10.03.2011 dismissing him from service and the Annexure A-3 appellate order dated 14.07.2011 rejecting his appeal against the aforesaid order of the disciplinary authority. Therefore, the reliefs sought for by the applicant in this case are the following:-
â1. To call for the records of the case and quash/set aside the impugned orders mentioned in Para-1 of O.A., direct the respondents to grant death-cum-retirement benefits to the applicant with all consequential benefits.
Or alternatively
Direct the respondents to convert the punishment of dismissal into that of compulsory retirement (Voluntary retirement) with all consequential benefits and direct the respondents to grant to the applicant with all consequential benefits.
Or alternatively
Direct the respondents to grant Compassionate allowance to the applicant with all consequential benefits as provided in Rule 41 of CCS (Pension) Rules that issue was required to be considered while passing the order of punishment of dismissal but not considered by the disciplinary authority.
2. To award costs in favor of the applicant and pass any order or orders which this Honble Tribunal may deem just and equitable in the facts and circumstances of the case.â
2. The brief facts of the case are that a departmental inquiry was ordered against the applicants husband vide order No. 6350-63/HAP/Sec.(P-I/Bn.) dated 07.07.2010. The allegations made against him were as under:-
1. while posted in E Block (Security) he was absented himself from his duties on the following occasions willfully and unauthorisedly:-
âTABLEâ
The following absentee notices were issued to him at his residential address i.e. Villagae Chand Pur, PO Dogra, Dist. Aligarh, (UP) directing him to resume his duty at once, falling which strict disciplinary action will be taken against him but he did not obey the orders of his seniors.
| S.No. | Absentee Notice No. and Date | Absentee notice received or not   |
| 1 | 9026-29 dt. 1.6.09 | Received by himself on 2.7.09 |
| 2 | 13505-08 dt. 23.7.09 | Ack not received |
| 3Â Â Â Â Â Â | 11715/18 dt. 1.7.09 | Act not received |
| 4 | 16399-96 dt. 1.9.09 | Received back due to incomplete address |
| 5Â Â Â Â Â Â | 3254-57 dt. 27.2.09 | Received back due to incomplete address |
4. On the basis of the aforesaid depositions of the PWs, the applicant was charge-sheeted on 10.09.2010. He was also given a notice for submitting the list of his defence witnesses and producing them for examination within seven days. According to the inquiry officers report, âthe absent papers vide DD No.18-B dated 20.08.2009 to DD No. 29-B dated 28.07.2010 E-Block put in on file. In those papers âConst. Madho Singh has taken the plea of private medical hospital papers. According to the inquiry officer as per âSO No.111 no department was informed by the defaulter in this regard. So his medical papers are arranged one. So, his plea cannot be accepted. He did not give other defence in writing in his defence. Therefore, the inquiry officer came to the conclusion that the applicant was a habitual absentee and time and again he was absenting himself on his own will. He also considered him as a negligent, careless and highly irresponsible police official. So he was not found fit for police duty. His plea of medical treatment for 337 days was also not found correct and the inquiry officer has, therefore, proved the charge of habitual absenteeism against the applicant.
5.The disciplinary authority in its order has also stated that a departmental inquiry was ordered against Ct. (Exe.) Madho Singh for his grave misconduct, negligence, highly irresponsible behavior and dereliction in discharge of his official duties vide office order dated 07.07.2010. According to the disciplinary authority, the inquiry officer Inspector Yad Ram served the summary of allegations, lists of witnesses and documents along with the copies of the relied upon documents to the applicant on 02.08.2010. Since he did not admit the allegations, the inquiry officer examined all the three PWs and it was on the basis of their depositions, the charge sheet was prepared and served on him on 10.09.2010. However, the applicant neither pleaded guilty of the charge nor submitted his written defence statement despite granting him ample opportunities. Thereafter, the inquiry officer brought the absentee papers, i.e., DD No. 18-B dated 20.08.2009 to DD No. 29-B dated 28.07.2010 of E. Block received vide No.8757/HAP/Sec.(P-I) dated 15.09.2010 on file. The disciplinary authority has also submitted that before arriving at the conclusion, the inquiry officer assessed that the delinquent has taken the plea of private medical hospital papers but as per SO No.111, no competent authority has permitted him to avail the medical rest. The applicant also did not inform the department about his illness. The disciplinary authority has, therefore, fully agreed with the inquiry officers report and holding that the inquiry was rightly held and the defaulter was guilty of the charge leveled against him. The disciplinary authority has also held that the absence from duty affects morale of others in a disciplined Force. It adversely affects the efficiency of the police department. He has also held that if exemplary action was not taken against him, it would encourage other members of the Force to follow suit and flout disciplinary norms. Accordingly, the disciplinary authority, vide the impugned order dated 10.03.2011, imposed upon him the punishment of dismissal from service and the absence period was treated as not spent on duty and the same was not to be regularized in any manner.
6. The applicant submitted an appeal against the aforesaid order of the disciplinary authority dated 10.03.2011 and informed the said authority that he was suffering from prolonged illness. It was also mentioned in the appeal that he was also suffering from hyper pyrexia with hepatitis, fever, severe backache, typhoid, fracture and even neuron problem and had been taking treatment continuously during the period of absence; he made several attempts to get the DD entries lodged about his illness in E Block Security Lines but every time the duty officers asked him to attend office personally but due to serious illness he could not do so; he has also stated that he has been discriminated in the matter as other similarly placed persons have not been awarded with such extreme punishment; the charge framed against him on the basis of the previous absences has already been decided and he has been punished for the same and considering it again is nothing but double jeopardy; as per Rule 8 of Delhi Police (Punishment and Appeal) Rules, 1980, the punishment of removal or dismissal shall be awarded for the gravest misconduct rendering one unfit for Police Service. He has also pointed out that in the impugned order, the disciplinary authority mentioned that he had a tendency to slip away from duty and most of the times he absented from duty on the crucial dates and at junctures without bothering for the department but the disciplinary authority did not mention any particular incident in this regard. Another contention of the applicant before the appellate authority was that the punishment was excessive and disproportionate to the alleged lapse and, therefore, justice has not been rendered by dismissing him from service. He has also stated that he remained on bed due to medical advice as such he could not even come to submit medical certificate to prove his innocence. The appellate authority, after going through the contentions in the appeal, impugned punishment order and other material available on record, held that the charges leveled against him were proved during the inquiry proceedings and was only after assessing/considering all the facts and circumstances of the case and after affording all opportunities of being heard personally, the disciplinary authority has held that the punishment of dismissal from service awarded to the deceased employee was reasonable, justified and commensurate with the gravity of the misconduct.
7. The applicant challenged the aforesaid impugned findings of the inquiry officer, order of the disciplinary authority dated 10.03.2011 and the order of appellate authority dated 17.07.2011 on various grounds. The main contention of learned counsel for the applicant is that the findings of the inquiry officer were vitiated because the alleged previous bad record was mentioned in the summary of allegations but their details were not given to him or even proved during departmental inquiry. However, without any evidence being available on record, the disciplinary authority simply held that the previous bad record was also proved by the inquiry officer in his findings. In this regard, he has relied upon a judgment of a co-ordinate Bench of this Tribunal in the case of Shri Jagdish Prasad v. Govt. of NCT of Delhi and others (O.A.No. 961/1999) decided on 16.02.2001. The applicant therein was an ex-Constable and he was proceeded against in a departmental inquiry on the allegation that on two occasions he willfully and unauthorizedly absented himself from duty for a period of 5 months and 108 days. The disciplinary authority imposed the punishment of removal from service upon him. Thereafter, he preferred an appeal which was rejected by the appellate authority. The revision petition filed by him was also rejected. This Tribunal allowed the said OA with its relevant part is as under:-
â4. While perusing the departmental enquiry record, we have perused the testimony of PW2, Constable Manoj Kumar where he had proved the absentee notices issued to the applicant and exhibited the same as Ex. P.W.-2/A and Ex. P.W.2/B. We find a definite and glaring interpolation in the statement of Constable Manoj Kumar whereby it has been added â[It is stated that I had exhibited the previous absent record to Constable Jagdish Prasad from Sl. No.1 to 12 as exhibited PW2/c. The said insertion of this statement of fact in the evidence of PW2 is firstly of small letters and is added with a different ink. Apart from it, the signature of the witness had already been appended in the statement and thereafter while adjusting the signatures the line adding the previous bad record had been latter on inserted in the testimony of PW2. The aforesaid insertion to our mind is absolutely fabricated/forged and interpolated later on to justify their action by the respondents. In this view of ours, we are satisfied on two grounds. Firstly, in the enquiry report, PW2s testimony had not referred to exhibit-PW2/C and this exhibit had not at all been mentioned by the enquiry officer anywhere in his findings. Secondly, the applicant in his appeal against the order of removal had taken a specific ground mentioned at Sl. No. (iii) stating that there is a violation of Rule 16 (11) of Delhi Police (Punishment and Appeal) Rules as the previous extract of record though mentioned in the list of documents had never been served upon him and also the same had also not been exhibited during the course of departmental enquiry. The appellate authority while rejecting the appeal of the applicant had not at all mentioned about this specific legal plea of the applicant in the contentions of the applicant mentioned therein and the same was neither adjudicated/considered nor rejected. In our considered view when the applicant had taken this specific objection in his appeal, the respondents with a view to counter the same, fabricated and later on inserted the fact of previous bad record and exhibited it as PW2/C. In our view had this evidence come earlier in the testimony of PW2 as defended by the respondents the same would have figured in the testimony of PW2 as well as in the finding. The enquiry officer could have relied upon it while coming to the conclusion that the applicant was a habitual absentee. In our view, the aforesaid interpolation is a serious lapse on the part of the respondents and is deprecated and we take a serious note of this.
5. We are fortified by the view taken by the Tribunal in OA No. 1364/99 supra. Rule 16 (xi) ibid which is a substantive provision is to be meticulously complied with while taking into consideration the previous bad record of a police officer. Not only the previous record should be made a specific part of the charge but against which a police officer should be afforded a reasonable opportunity to defend himself. Unless the previous bad record is put to a police officer in the form of evidence brought on record in the departmental enquiry, the applicant should not be punished by taking this previous bad record. This is precisely what happened in the present case. In absence of the evidence of previous bad record proved or brought on record by any witness and also in absence of being exhibited the applicant had not been afforded a proper notice of the same and accordingly he could not effectively defend this piece of evidence against him in the departmental enquiry.
6. Latter on, the enquiry officer while coming to the conclusion of guilt against the applicant, proved this charge of habitual absenteeism on the basis of previous bad record of the applicant on 12 occasions. Furthermore, the findings of the enquiry officer are also agreed upon by the disciplinary authority and there he imposed the extreme punishment of removal upon the applicant taking into account the previous bad record as per Rule 16 (xi) ibid. The consideration of previous bad record had not stopped at the level of disciplinary authority but the same was also taken into consideration by the appellate as well as revisional authority.
7. In view of the fact that the previous bad record was the basis for extreme punishment against the applicant and rejecting of his departmental appeal and revision petition, the same could not have been validly taken into consideration without applying the provisions of Rule 16(xi) ibid. Having regard to the discussion made above, we are of the considered view that the impugned orders are not legally sustainable on this illegality alone.
8. As regards our observations pertaining to the interpolation of record by the respondents in the testimony of evidence of PW-2 by inserting the previous bad record, we take a very serious note and direct the respondents to enquire in this matter and fix the responsibility of erring official. As in the peculiar facts and circumstances of the case, where the applicant had been punished on the basis of the interpolation and fabrication made by respondents, we would not like to give respondents an opportunity to collect themselves by remanding this case back to them.
9. In the result, this OA is allowed. The impugned orders of removal dated 9.3.1998, 5.8.1998 and 11.2.1999 are quashed and set aside. The respondents are directed to reinstate the applicant forthwith in service with all consequential benefits but without any backwages. As the respondents have been found to have fabricated the record to justify their action we impose a cost of Rs.5000/- (Rupees Five Thousand Only) on the respondents to be paid to the applicant. The respondents are directed to comply with these directions within a period of two months from the date of receipt of a copy of this order.â
8. Learned counsel for applicant has also relied upon the judgment of the Honble High Court of Delhi in Commissioner of Police, Delhi v. Jagdish Prasad (W.P. (C) No. 4679/2001) decided on 17.01.2013. The relevant part of the said order is also reproduced as under:-
â3. Conscious of the fact that the misdemeanour committee by the respondent is serious i.e. being a member of Delhi Police he absented from duty for 5 months and 10 days and gave no valid reason for the same, we would be constrained, while remitting the matter to the Competent Authority to pass a fresh order on the penalty issue and direct that the penalty which would be levied would neither be dismissal nor removal nor compulsory retirement for the reason vide impugned order dated February 16, 2010 after setting aside the penalty of dismissal from service on account of Rule 16 (xi) being violated the Tribunal ordered the respondents to be reinstated in service but denied back wages for the short period of less than 2 years which lapse between the penalty being levied and the respondent being reinstated. The writ petition was filed but for reasons known to the counsel concerned for the petitioner he chose not to press the stay application in which it was prayed that pending disposal of the writ petition the operation of the impugned order passed by the Tribunal be stayed. The result is that the respondent is reinstated in service in the year 2001 and has served since then and is continuing to serve till today.
4. We dispose of the writ petition modifying the impugned order passed by the Tribunal directing respondent to be reinstated in service with all consequential benefits except back wages maintaining respondents reinstatement, and maintaining the departmental orders being quashed by the Tribunal, we remand the matter before the Disciplinary Authority to levy a penalty upon the respondent but in doing so past misconduct would be ignored and we make clear that the penalty would be neither dismissal nor removal from service nor compulsory retirement.â
9. Learned counsel has also relied upon the circular dated 23.07.1997 issued by the respondents directing the disciplinary authority to conduct verification of the medical certificates submitted by the police officials issued to them by the private medical practitioner, if they have any doubt about their genuinity. The circular is reproduced as under:-
âCircular It has been noticed while deciding the appeal cases that the median certificates produced by the delinquent officials in support of their version of illness for the alleged absences are not considered by the disciplinary authority. Generally these medical certificates are not accepted by the Disciplinary Authority without making any verification of its authenticity or genuineness from the concerned Dispensary/Hospital. The pleas taken by the delinquent in this regard are ignored completely on the grounds of being fake and procured medical certificates even in important cases of long absences and major punishment awarded to the delinquent officials.
It is therefore, emphasized upon the all DCsP/DAP Bns. And PTS that before deciding such cases which are duly covered by proper medical certificates necessary verification should invariably be made from the issuing agencies so as to avoid any implication at later stage.
Sd/-
( R.K. Niyogi)
Sr, Adll. Commissioner of Police
(PandT) Delhi
No.F.XVI/63/97/8464-74/P-1, dated Delhi, the 23.7.97.â
10. We have heard learned counsel for the applicant, Shri Anil Singal and learned counsel for the respondents, Shri Vijay Pandita. It is seen that the applicant was dismissed from service for his alleged habitual absenteeism. The contention of the applicant was that he was suffering from âHyper Pyrexia with Hepatitisâ and he was advised complete bed rest for eight weeks from 27.01.2009 to 24.03.2009. He produced the medical certificates to the said effect from a private medical practitioner. He has also produced documents/medical certificates from the private medical practitioner for the periods from 01.05.2009 to 04.06.2009, 05.06.2009 to 29.06.2009, 30.06.2009 to 31.07.2009, 01.08.2009 to 08.08.2009, 11.08.2009 to 21.08.2009 and 26.08.2009 to 28.07.2010 to prove that he was undergoing continued treatment. It was during his illness that the respondents have initiated the disciplinary proceedings against him vide their order dated 07.07.2010. According to the medical certificates submitted by him, he was suffering from âHepatitis which everyone knows that it is a deadly disease. But the disciplinary authority did not bother to verify whether the claim of the applicant was genuine or not. He could have, if there was any doubt, very well directed him to appear before any Government doctor to verify the position by subjecting him for a second medical opinion. Another important aspect of this case is that the inquiry officer has simply stated in the charge that he had absented himself from duty on 16 different occasions and he was granted LKD, commuted leave etc. In our considered view taking leave during ones service and granting the same is nothing new or anything special. If one remains on unauthorized leave only, the question of misconduct and question of indiscipline would arise. All unauthorized absence/leave cannot be treated as misconduct. If a government servant absent himself from duty for reasons beyond his control and the sanctioning authority arbitrarily refuses to grant him the leave, such absence cannot be termed as unauthorized. It is for the very same reason that the respondents have issued the circular dated 23.07.1997 emphasizing upon all the leave sanctioning authorities to verify the medical certificates submitted by the police officials before rejecting them on the ground that they are âfake or âarranged.
11. There is no doubt that unauthorized absence from duty particularly by the officials in a disciplined Force like Delhi Police is a grave misconduct. But before the inquiry officer or the disciplinary authority come to such a conclusion, proper inquiry has to be done. However, in this case the report of the inquiry officer reveals that the inquiry was held in a very casual manner. From reading the statements of the official dealing with the applications of leave of the employee concerned that the official remained on leave for different spells and absent notices have been sent to him will not prove that the absence of the applicant was for not genuine reasons and just because the disciplinary authority does not sanction leave, all absences can be treated as unauthorized. Before the absence of an employee is declared unauthorized, the authority concerned has to give reasons for doing so. We are, therefore, of the view that the disciplinary authoritys order dismissing the applicant from service was taken in an arbitrary manner without ascertaining the factual position. It is also on record that the applicant made several attempts to get the DD entries lodged about his illness but the duty officer insisted him to attend the duty personally unmindful of the fact that he was suffering from the deadly ailment of hepatitis. Again it is unfair on the part of the inquiry officer to expect the applicant to be present during the inquiry proceedings when he was still suffering from the aforesaid disease and undergoing treatment.
12.Again under Rule 8 of the Delhi Police (Punishment and Appeal) Rules, 1980, the punishment of removal or dismissal from service can be awarded only for gross misconduct rendering one unfit for police service. The inquiry officer is expected to say only whether charge leveled against the delinquent was proved or not. While charge proved against him was grave or not was to be left to the disciplinary authority. It is also not the prerogative of the inquiry officer to decide whether the delinquent was fit to police duty or not. The said rule is reproduced as under:-
â8. Principles of inflicting penalties:-
(a)Â Dismissal/Removal. - Punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.â
In our considered view both the disciplinary as well as the appellate authorities did not apply their mind. They have been swayed by the report of the inquiry officer which was beyond his jurisdiction. Further, it is seen that the applicants husband died immediately after his dismissal from service. It also shows that his claim that he was suffering from hepatitis and other diseases was not unfounded.
13. In view of the above facts and circumstances in this case, we allow this O.A. and quash and set aside the impugned inquiry officers report and the orders of the disciplinary as well as the appellate authorities. As the applicant has, unfortunately, expired on 16.07.2011, he shall deemed to have been re-instated in service w.e.f. 10.03.2011 i.e. the date of his dismissal from service with all consequential benefits. The respondents shall also pass appropriate orders and disburse all the financial benefits arising thereof in accordance with the rules within two months from the date of receipt of a copy of this order. There shall be no order as to costs.