1. Vide order dated 11.12.2007 this Application was dismissed in default for want of prosecution. Applicant has filed MA No.136/2008 praying for recalling the order aforesaid. For the reasons mentioned therein, the MA is allowed and the Original Application is restored to its original position, and taken up for hearing.
2. Yogender Singh, a former constable in Delhi Police, the applicant herein, through present Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, has challenged the order passed by the disciplinary authority dated 2.2.2005 vide which on account of his unauthorised absence from duty for 471 days, he has been dismissed from service, as also the order passed by the appellate authority dated 15.6.2006 dismissing his appeal preferred against the order aforesaid.
3. The facts of the case which are not much in dispute reveal that a departmental enquiry was conducted against the applicant under provisions of Delhi Police (Punishment & Appeal) Rules, 1980 for his remaining absent from duty, which fact was recorded in DD entry No.21-A dated 21.9.2003 for a period of 471 days, 6 hours and 10 minutes. The applicant had also remained absent on 12 occasions from duty as mentioned below:S. DD No. & date DD No. & date Period of absenceNo. of absence of arrival Day Hours Mints The applicant was issued 17 absentee notices at his native place with direction to resume duty at once and in case he was ill, to report to CMO, Civil Hospital, Distt. Jhajjar, for second medical opinion. In spite of repeated notices, the applicant neither resumed his duties nor complied with the directions. He, however, resumed duty on 4.1.2005.
The enquiry officer in his report after discussing the evidence that was led by the department came to the conclusion that the charge against the applicant stood proved. The disciplinary authority while accepting the report of the enquiry officer, vide order dated 2.2.2005 dismissed him from service, which order, as mentioned above, has been affirmed in appeal.
4. Mrs. Avnish Ahlawat, Learned Counsel representing the applicant, without touching the merits of the case, or for that matter, challenging the findings recorded by the concerned authorities with regard to wilful absence of the applicant from duty, has raised only one issue. It is urged by her that the applicant was sick which fact was disclosed to the concerned authorities with proper documentary evidence in the shape of medical certificates issued by government hospitals, which would show that the applicant was mentally depressed, but the same was not taken into consideration at any stage. This aspect of the case is hotly contested by the respondents. Shri Ajesh Luthra, Learned Counsel representing the respondents, would contend that no such plea was raised at any stage whatsoever, and even in the Original Application it has not been asserted that the concerned authorities were apprised of mental condition of the applicant, which could be a valid cause for his absence from duty. The counsel representing the applicant has not been able to show pleadings made on that behalf in the Application. The mention in the pleadings is only with regard to non-consideration of medical certificates by the appellate authority.
The relevant para in the pleadings reads as follows: xiii) That the applicant submitted an appeal against the order along with complete medical certificates, Regd AD to the appellate authority. He was called for hearing but after hearing him after more than 15 months, he passed the order dismissing the appeal. He did not consider the medical certificates which are from the CGHS dispensary, Police Lines itself and simply on the ground that since he did not apply for prior permission, he rejected the appeal. He did not dispute the fact that the wife had sent the information but did not give any weight to the same that on the ground merely sending information of illness does not mitigate the misconduct. He failed to consider the fact that applicant was sincere and punctual throughout his career and it is because of the acute depression, sickness that he had absented himself when the medical certificates were not rejected by the authorities, his rejecting the appeal was wholly illegal.
What transpires from the records of the case is that no plea with regard to ailment of the applicant was raised either before the enquiry officer or before the disciplinary authority. Along with the rejoinder, the applicant has annexed grounds of appeal which indeed would show that the applicant had raised the ground before the appellate authority that doctor had diagnosed his disease as depression and advised treatment with complete bed rest. At the footnote of the memorandum of appeal it is also mentioned that medical certificates are enclosed.
Perusal of the order passed by the appellate authority would, however, show that when the applicant was heard in person, he stated that he could not resume his duties because of his illness and marriage of brother and sister. The order would further reveal that the plea advanced by the applicant that his wife had sent information in writing on 22.9.2003 about his illness, was held to be baseless. It was further observed that mere sending of information would not mitigate the misconduct of the applicant and absolve him of the misconduct.
5. We have given our thoughtful consideration to the only issue raised by the Learned Counsel representing the applicant, but in totality of the facts and circumstances of the case, do not find any merit therein.
The applicant on the very first instance when he was issued absentee notice was told that if he was sick he should get himself medically examined from a particular hospital, but the applicant would not subject himself to the medical examination. He did not take any plea of sickness before the enquiry officer nor even before the disciplinary authority. Raising the plea for the first time before the appellate authority appears to be an afterthought. That apart, we find that if the applicant was really sick, he would have given intimation to the concerned authorities with supporting evidence. He would do nothing for the long period of his absence, which is of 471 days.
6. Finding no merit in this Application, we dismiss the same, leaving, however the parties to bear their own costs.