Judgment:
1. Constable Amarjeet Singh, applicant herein, was dismissed from service pursuant to a departmental enquiry wherein the charge against him for remaining willful absent from duty for a period of 13 months, 27 days and 18 hours was proved as per the report of the enquiry officer, Annexure-1, dated 23.3.2005. The order of dismissal from service was passed by the Deputy Commissioner of Police, the disciplinary authority, vide order dated 14.11.2005 which has since been confirmed by the Joint Commissioner of Police vide order dated 31.5.2006 in an appeal carried by the applicant against the order passed by the disciplinary authority. These are the orders that have been challenged in the present Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985.
Summary of allegations prepared by the enquiry officer reads as follows: It is alleged against you Const. Amarjeet Singh No. 1830 SD that while posted at Police Station K.M. Pur, South District on 21.10.2001 you were deputed for picket duty at NDSE Part-I from 8 p.m. but you neither turned up for duty nor sent any information as such you were marked absent vide DD:- No. 26-B dated 21.10.01 at 8.30 p.m. Four absentee notices dated 11.2.2002, 6.6.2002, 20.8.2002 and 13.11.2002 were issued and sent by registered post for service through S.P. Jhajjar (Haryana). All the absentee notices were personally served on you by the local police of P.S. Sadar, Bahadur Garh, Haryana. Absentee notice dated 11.2.2002 was personally served upon you by Head Constable Sorup Singh, No. 682/SD of P.S. K.M. Pur, Delhi. On the directions of Addl. DCP-I SD, ASI Gangadeen of Distt.
Lines was also deputed to personally verify and report on 5.12.2002, ASI Gangadeen visited the native village Kanaunda, P.S. Bahadur Garh (Haryana) of you Constable Amarjeet Singh and personally met with you. According to the report of ASI Gagandeep you were found working in the fields on a Tube Well and were not found ill. Also according to the reports of the local police of P.S. Sadar Bahadur Garh you were not found ill.
You resumed your duty only on 19.12.2002 vide DD No. 24-B dated 19.12.2002 P.S. K.M. Pur after absenting yourself for a period of 13 months, 27 days and 18 hrs. You were again marked absent vide DD No. 5-B dated 10.1.2003 P.S. K.M. Pur and since then running absent.
The above act on the part of you Constable Amarjeet Singh No. 1830/SD amounts to gross misconduct negligence, carelessness and dereliction in the discharge of your official duties, which render you liable for departmental enquiry under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980.
2. There will be no need to burden this judgment by giving facts in detail as the only question that has been raised in the present Original Application is that the first enquiry officer had examined ASI Gangadeen PW-1, HC Yashbir Singh PW-2, Constable Virender Kumar PW-3 and ASI Balbir Singh PW-4 without even preparing summary of allegations. The said enquiry officer recorded the statements of aforesaid four PWs without giving any opportunity to the applicant to cross-examine them. The summary of allegations, list of witnesses and documents to be relied upon by the disciplinary authority were also not prepared or sent to the applicant. There was no order for conducting even ex parte proceedings against the applicant. This procedural defect came to the notice of the second enquiry officer who then prepared summary of allegations and sent the same to the applicant and when he did not appear, he obtained the orders from the competent authority to proceed ex parte against the applicant. Even though, the second enquiry officer proceeded in the manner as prescribed under the Delhi Police (Punishment & Appeal) Rules, 1980 (hereinafter referred to as 'the Rules of 1980') but he yet fell into an error in relying upon the statements of prosecution witnesses who were examined prior to framing of summary of allegations. The second enquiry officer did not examine the fifth witness i.e. SHO Kotla Mubarak Pur being a formal witness who had only forwarded the absentee notices. The enquiry officer also examined Constable Harjeet Singh as a Court Witness, who made deposition only with regard to service of the applicant and not with regard to willful absence of the applicant from duty, which was the charge framed against the applicant.
3. There is absolutely no dispute of the facts, as mentioned above. In fact, the second enquiry officer, while returning the finding of guilt against the applicant, has himself recorded the same as follows: I received the DE file on 26.6.03. On security of Departmental Enquiry file and the relevant material/papers placed on file, it transpires that the earlier E.O. had recorded the statements of four P.Ws but these witnesses were not cross-examined by the defaulter constable. Neither any summary of allegation, list of witnesses and documents to be relied upon in the DE nor any order for conducting the proceedings exparte was available on file.
Accordingly, I prepared the summary of allegation, list of witnesses along with the evidence to be led by them and the list of witnesses to be relied upon in this D.E.4. The procedure for departmental enquiries has been provided under Rule 16 of the Rules of 1980, the relevant part whereof reads as follows: 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) A police officer accused of misconduct shall be required to appear before the disciplinary authority, or such Enquiry Officer as may be appointed by the disciplinary authority. The Enquiry Officer shall prepare a statement summarizing the misconduct alleged against the accused officer in such a manner as to give full notice to him of the circumstances in regard to which evidence is to be regarded.
Lists of prosecution witnesses together with brief details of the evidence to be led by them and the documents to be relied upon for prosecution shall be attached to the summary of misconduct. A copy of the summary of misconduct and the lists of prosecution witnesses together with brief details of the evidence to be led by them and the documents to be relied upon for prosecution will be given to the defaulter free of charge. The contents of the summary and other documents shall be explained to him. He shall be required to submit to the enquiry officer a written report within 7 days indicating whether he admits the allegations and if not, whether he wants to produce defence evidence to refute the allegations against him.
(ii) If the accused police officer after receiving the summary of allegations, admits the misconduct alleged against him, the enquiry officer may proceed forthwith to frame charge, record the accused officer's pleas and any statement he may wish to make and then pass a final order after observing the procedure laid down in Rule 15 (xii) below if it is within his power to do so. Alternatively the finding in duplicate shall be forwarded to the officer empowered to decide the case.
(iii) If the accused police officer does not admit the misconduct, the Enquiry Officer shall proceed to record evidence in support of accusation, as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross-examine them. The Enquiry Officer is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay, in convenience or expense if he considers such statement necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer, or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and he shall be given an opportunity to take notes. Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned.
The accused shall be bound to answer any questions which the enquiry officer may deem fit to put to him with a view to elucidating the facts referred to in the statements of documents thus brought on record.
(iv) When the evidence in support of the allegations has been recorded the Enquiry Officer shall: If he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him or recommended his discharge to the Deputy Commissioner of Police or other officer, who may be so empowered or, Proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.
5. Perusal of Rule 16, reproduced above, would clearly manifest that the enquiry officer has to first prepare a statement summarizing the misconduct alleged against the accused officer in such a manner as to give full notice to him of the circumstances in regard to which evidence is to be regarded. Lists of prosecution witnesses together with brief details of evidence to be led by them and the documents to be relied upon for prosecution have to be attached to the summary of misconduct. A copy of the summary of misconduct and the lists of prosecution witnesses together with brief details of evidence to be led by them or documents to be relied upon for prosecution have to be given to the defaulter free of charge. If the accused police officer after receiving the summary of allegations etc. may admit the misconduct, the enquiry officer is to proceed forthwith to frame charges. If, however, the accused police officer may not admit the misconduct, the enquiry officer is to proceed to record evidence. In the present case, first enquiry officer chose to first record the evidence of all material witnesses. These witnesses were not even cross-examined by the applicant. Summary of allegations, list of witnesses and documents to be relied upon in the departmental enquiry were not prepared, least served upon the applicant. So much so, so as to proceed ex parte against the applicant, no approval as required under Rule 18 of the Rules of 1980 was obtained from the disciplinary authority. In fact, no order to proceed ex parte against the applicant was passed.
6. Learned Counsel defending the respondents is unable to controvert the contentions raised by learned Counsel representing the applicant that procedure as envisaged under Rule 16 of the Rules of 1980, which is mandatory, was not followed. It is, however, submitted that on the available material, it is proved that the applicant remained wilfully absent for a long period and plea raised by him before the disciplinary and the appellate authorities that he was sick and thus could not attend to his duties has been rejected on cogent grounds. He further contends that the applicant would not respond to various absentee notices issued to him and that being so, he cannot be permitted to raise the procedural defect in conducting the departmental enquiry.
7. We have heard learned Counsel for the parties and with their assistance examined the records of the case.
8. We are of the firm view that the set procedure to be followed in the departmental enquiry is provided under the statutory rules and the same has to be followed. The absence of the applicant in attending to departmental proceedings would not be enough to cure any inherent defect in the procedure followed by the concerned authority. It may be true that on the basis of evidence, long absence of the applicant might have been proved but if the evidence of witnesses recorded prior to framing of summary of allegation is excluded, the department cannot be said to have proved its case. It may be recalled that material witnesses were examined before framing the summary of allegations. The second enquiry officer did not consider it necessary to record the statement of SHO, Kotla Mubarak Pur being a formal witness. Insofar as Constable Harjeet Singh examined as Court Witness is concerned, he may have proved service or deemed service upon the applicant but the said evidence is not with regard to the charge framed against the applicant of remaining wilfully absent from duty. His evidence, thus, may at the most justify ex parte proceedings when the second enquiry officer sought to serve and secure his presence.
9. For the reasons mentioned above, we allow this Application. The report of the enquiry officer dated 23.03.2005, the orders dated 14.11.2005 and 13.05.2005 passed by the disciplinary and the appellate authorities respectively are set aside and quashed. We have given a serious thought as to, while setting aside the report of the enquiry officer and the impugned orders, as mentioned above, whether any consequence relief may be given to the applicant at this stage considering the long absence of the applicant from duty, who is a member of disciplined force. In view of the fact that the impugned orders are being set aside on technical grounds, we are of the opinion that the consequential relief will abide the final event. That being so, if the applicant is able to vindicate his stand that he was sick and thus unable to attend his duties, the respondents' authorities may consider him giving consequential benefits. In the totality of facts and circumstances of the case, we do not find that the present case is the one where consequential reliefs may be accorded to the applicant at this stage. OA is disposed of in the manner aforesaid, leaving the parties to bear their own costs.