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Judgment
S.N. Terdal, J
We have heard Mr. Sachin Chauhan, counsel for applicant and Mr. Amit Yadav for Shri Ankur Chhibber, counsel for respondents, perused the pleadings and documents produced by both the parties.
In this OA, the applicant has prayed for the following reliefs:
"8.1 To quash and set aside the impugned order dated 19.03.2014 passed by Disciplinary Authority whereby the extreme punishment i.e. dismissal from is being imposed upon the applicant and order dated 03.09.2014 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents to reinstate the applicant back in service to the post of Constable (Exe.) with all consequential benefits including seniority and promotion and pay and allowances.
8.2 To quash and set aside the order of initiation of Departmental enquiry dated 28.05.2013.
8.3 To quash an set aside the findings of the Enquiry Officer.
Or/and
Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the applicant."
The relevant facts of the case are that for being unauthorisedly absent right from 24.11.2008 and for not disclosing the diseased and for not responding for the treatment in the Civil hospital upto 2013, a summary of allegation was issued to the applicant. The detailed summary of allegation is extracted below:-
"Constable Dharambir, 1239/ND while posted at PS Mandir Marg absent himself vide DD No. 09-B dated 24.11.2008 unauthorisedly and thereafter he sent the medical certificates issued by one Dr. J.C.Yadav, CMO Ayurvedic Hospital, Gahankar, Alwar, Rajasthan on different occasions with his application that he is running ill an will resume his duty as and when he will declare fit by the doctor. But on each occasion he did not bother to get the medical rest prescribed to him by the doctor permitted from the competent authority to avail the same at his residence as required under SO No. 111 of Delhi Police.
He was directed vide this office Memo No. 11949/SIP/NDD dated 04.09.2009 to get himself medically examined from the nearest civil surgeon of the Govt. hospital as he had not disclosed the name of the disease and the same was also not clear from the copies of the medical papers which were sent by him but he did not do so. He was again directed vide this office Memo No.237/SIP/NDD dated 12.01.2010 either to resume his duty at once or attend the office along with the medical papers for getting prior permission of the competent authority to avail medical rest at his home as he was availing medical rest without any prior permission of the competent authority, but this time also he neither turned up along with his medical papers nor sent any of his relative to this office to get the medical rest permitted from the competent authority and further continued his practice to send the photocopies of medical rest prescribed to him by the medical officer of the Ayurvedic Hospital, Gahankar, District Alwar, Rajasthan. The request was made to the CMO District Alwar, Rajasthan vide this office letter No 8325/SIP(AC)/NDD dated 14.9.2012 to examine/consider the medical case of constable Dharambir, 1239/ND by the medical board as to whether he is fit to join to duty or otherwise. On receiving no response a reminder was again issued for the purpose to the CMO, District Alwar, Rajasthan vide this office No. 1397/SIP (AC)/NDD dated 10.02.2013. The SHO PS Mandir Marg was also directed to depute a responsible officer to get the re-medical/examination of the constable at the District Hospital, Alwar, Rajasthan, who deputed SI Manoj Kumar, D-4602 of PS Mandir Marg. Then SI Manoj Kumar along with Ct. Sanjay Dagar visited the village Harcholi, District Alwar, Rajasthan i.e. the residence of the constable on 30.04.2013, but he was not found present at his residence. The father and brother of the constable informed to the SI that he has gone to Jaipur for treatment.
Constable Dharambir was contacted by the SI and apprised the purpose of his visit on which the constable assured SI Manoj Kumar that he would appear before CMO, Alwar, Rajasthan along with his medical papers on 02.05.2013 for re-medical examination. But on 02.05.2013 he did not turn up at the office of the CMO, Alwar, Rajasthan. Moreover, when SI Manoj Kumar tried to contact the constable on his mobile phone, he did not attend the call. Finding no other way the SI returned to Delhi and lodged a detailed report vide DD No. 54-B dated 02.05.2013.
For the above said misconduct constable Dharambir, 1239/ND has been place under suspension w.e.f. 07.05.2013 vide this office order No. 1961-80/HAP/NDD dated 07.05.2013.
The above act on the part of Constable [Exe] Dharambir 1239/ND (PIS No. 28010491) amounts to grave misconduct, dereliction in the discharge of his official duties and unbecoming a member of police force which renders him liable for departmental action under the provision of Delhi Police (Punishment and Appeal) Rules-1980 read with Section 21 of D.P. Act., 1978."
Along with the summary of allegation, list of witnesses and list of documents were served on the applicant. As the applicant did not admit the allegation, an Inquiry Officer was appointed. The Inquiry Officer following the principles of natural justice and the relevant rules regarding the holding of the departmental enquiry examined PW 1 to PW 5 and taken on record various documents produced by the prosecution and provided reasonable opportunities to the applicant to produce his witnesses and thereafter after taken on record defence statement submitted by the applicant and analyzing and discussing the evidence, came to the conclusion that the charges levelled against the applicant were proved vide his inquiry report dated 06.01.2014. The relevant portion ofthe inquiry report is extracted below:-
"Discussion of Evidence
In the end I would like to discuss the prosecution evidence on file including the copies of the relied upon documents duly exhibited and statement of delinquent to reach a conclusion. In all 5 witnesses were examined from prosecution side and one Defence witness was earlier produced by the delinquent but same was later on withdrawn by him and as such the deferred statement was not considered.
The basic contention of the charge against Const. Dharamveer 1230/ND is that he unauthorisedly absented from his official duty at PD Mandir Marg from 24.11.2008 ad then submitted medical certificates issued by Dr.J.C. Yadav, CMO Ayuredic Hospital, Gahankar, Alwar on different occasions and availed the medical rest without the permission of the competent authority as required under SO No.111 of Delhi Police. He was also directed to get himself medically examined from Civil Surgeon of Govt Hospital, Alwar as the name of the disease was neither disclosed by him nor it was clear from the medical papers filed by him but he did not do the same despite the written as well as verbal directions. He was also directed to attend the office to obtain the permission of competent authority to avail medical rest at home but he failed to do so and remained unauthorisedly absent on his duty. Further for the purpose of his re medical, SI Manoj Kumar of PS Mandir Marg was also sent at his residence but he intentionally concealed himself and did not attend the telephone calls of SI Manoj Kumar to avoid re-medical examination at Govt. Hospital, Alwar.
PW 1 SI Manoj Kumr deposed that he visited the residence of const. Dharamveer 1239/ND for his re-medical examination where he was not found present. Accordingly he contacted Const Dharamveer telephonically and directed him to appear before CMO, Alwar on 2/5/2013 for his medial but after that Const Dharamveer neither responded to his telephone calls nor attended the office of CM0, Alwar. He further deposed that Const Dharamveer intentionally concealed himself. From the deposition of PW 1, the conduct of Const.Dharaamveer regarding intentionally concealing himself to avoid re medical examination at Govt. Hospital is established.
PW-2 HC Devi Chand proved DD No. 9B dated 24.11.2008 and DD No. 54 dated 2/5/2013 regarding absent of Const Dharamveer No. 1239/ND and report lodged by SI Manoj Kumar.
PW-3 Insp Om Prakash Panwar verified the contents of his report dated 3/5/2013 regarding conduct and absence of Constable Dharamveer no 1239/ND. He proved his report regarding absent of Const.Dharamveer and his subsequent conduct of not joining duty for which recommendation for taking departmental action was sent.
PW-4 Const. Sunder proved the posting of Constable Dharamveer No. 1239/ND at PS Mandir Marg from 9/6/2008 to 8/7/2011 and then his transfer to PS Tilak Marg where he did not report. He further proved his suspension w.e.f. 7/5/2013.
PW-5 WHc Asha Rani proved absence notices 11949/SIP (AC)/NDD dated 4/9/2009 and 237/SIP/NDD dated 12/1/2010 with report from PS Mandir Marg. She further proved copies of letter no. 8325/SIP (AC)/NDD dated 14/9/2012 and 1397/SIP (AC)/NDD dated 11/2/2013 addressed to CMO/Alwar Rajasthan for conducting the re medical examination of Const. Dharamveer 1239/NDD. The copy of letter no. 8325/SIP (AC)/NDD dated 14/9/2012 was also sent at residence of Const. Dharamveer no. 1239/ND.
Defence Plea
Initially, delinquent Ct. Dharamveer submitted the name of one DW Dr J.C.Yadav whose part statement was recorded on 2/12/2013 which was deferred for want of record. Later, on 11/12/2013, the delinquent constable requested in writing to withdraw the name of DW Dr J C Yadav and as such DW was dropped and his part statement was also considered. In the defence statement delinquent claimed that due to the serious illness he could not resumed duty but his intentional conduct of avoiding re medical examination at Govt Hospital disproves his claim. Moreover the fact of dropping of name of Dr. J.C. Yadav as DW also goes against his claim of serious illness.
Conclusion
From the above mentioned discussion on the deposition of prosecution witnesses and documentary evidence exhibited during the proceedings, it has been established that Const Dharamveer 1239/ND unauthorisedly absented from his official duty at PS Mandir Marg from 24.11.2008 and without obtaining the permission of the competent authority as required under SO No. 111 of Delhi Police, availed medical rest claimed to have been prescribed by CMO Ayuredic Hospital, Gahankar, Alwar on different occasions. In spite of the written as well as verbal directions, he neither got himself re-medically examined from Civil Surgeon of Govt. Hospital, Alwar nor attended the office to obtain the permission of the competent authority to avail medical rest at home and remained unauthorisedly absent. Moreover, despite the directions given by SI Manoj Kumar for visiting office of CMO, Alwar for re medical examination, he intentionally concealed himself to avoid the same on 2/5/2013. Thus the charge against delinquent Const. Dharamveer 1239/ND stands fully proved."
The inquiry report was served on the applicant. The applicant submitted his representation against the inquiry report. The disciplinary authority after taking into account the entire material and record and considering the representation submitted by the applicant and also personally hearing the applicant in orderly room came to the conclusion that the continuous absenteeism of the applicant particularly in the disciplined force is a serious matter and it is going to jeopardize their entire system and going to weaken the whole security system and in the uniformed force such irresponsible person has no place and he is unfit to be retained in the disciplined force and he was totally unsuitable and is burden to the State Exchequer and dismissed the applicant vide order dated 19.03.2014. The relevant portion of the order is extracted below:
"I have carefully gone through the entire D.E. proceedings, findings of the E.O as well as other material evidence available on record. I have also heard the defaulter Constable in O.R. During O.R he did not adduce anything new except what he has already stated in his written reply. The plea taken by the defaulter Constable in his written reply as well as oral submissions is not found convincing. The Enquiry Officer has conducted the D.E. proceedings as per the laid down procedure in Rule 16 of Delhi Police (Punishment & Appeal) Rules, 1980. On the basis of evidence which came on record during the DE proceedings the charge has been proved against the defaulter Constable. As regards the judgments of the Hon'ble Courts, each and every case is decided on its own merits. If the defaulter Constable was actually ill, he should have taken prior permission of the competent authority to avail the medial rest or inform the department about his illness and medical rest. Even the defaulter Constable did not submit any medical paper in support of his illness till date. There are much better hospitals in Delhi like RML Hospital which is nearest to the place of posting of the defaulter Constable and the department could have provided necessary help to him during his illness but he preferred to remain absent unauthorisedly for such a long period at his own sweet will at his native village without any intimation/prior permission of the competent authority, which is in contravention of S.O No. 111 and CCS (Leave) Rules, 1972. I do not deny the probability that a person can have medical problem but I do not expect that he would be responsible enough to convey hi right state to the department and get the medical rest permitted from the competent authority. Such type of indiscipline attitude in a discipline force cannot be tolerated. Hence, the charge against him has been proved conclusively and he is found guilty of it.
Continuous absenteeism in a disciplined force for such a long period is a serious matter because it cripples the entire administration of the Police Department. This is a blatant violation of CCS (Leave) Rules-1972 and S.O No.111 of Delhi Police. Each and every police officer is deployed for duty with specific tasks. It is like a chain and if one link of the chain is missing, it jeopardizes the entire system. If a police officer is found deliberately absent from duty, it weakened the whole security system, which is quite serious. This is a serious lapse on the part of defaulter Constable (Exe.) Dharamveer No.1239/ND. Further, continuance of such irresponsible person has a bearing on the discipline of a force and may adversely affect others. He is unfit to be retained in a disciplined force. His further retention in the force is totally unsuitable and an added burden on the State Exchequer.
Therefore, I, Madhur Verma, Addl. Dy. Commissioner of Police-1, New Delhi Distt., New Delhi, hereby, dismiss Constable (Exe.) Dharamveer No. 1239/ND from service of Delhi Police with immediate effect. His absence period w.e.f. 24.11.2008 to 06.05.2013 is decided as period not spent on duty for all intents and purposes on the principle of "No work No Pay" and the same is not being regularized in any manner. His suspension period from 07.05.2013 to date of issue of this order is also decided as period not sent on duty for all intents and purposes and the same is not being regularized in any manner."
The applicant filed an appeal. The appellate authority also once again after considering the entire material and the grounds raised by the applicant in his appeal and hearing the applicant in orderly room on 06.06.2014 rejected the appeal vide order dated 03.09.2014.
The counsel for the applicant vehemently and strenuously submitted that it is not the case of the respondents that the applicant was intentionally, purposely and unauthorizedly remained absent. He remained absent as he was under medical treatment and that he had informed the department about his treatment in his native place in Rajasthan, his absence was not wilful and it was only because of the health problem and because of the treatment he was undergoing under Ayurvedic Hospital that he remained absent and as such the findings of the inquiry officer is perverse and he further submitted that the punishment of dismissal imposed on him is shockingly disproportionate. The counsel for the applicant has not pointed out any violation of principles of natural justice or violation of any rules governing the holding of the departmental enquiry, in conducting the inquiry proceedings..
The counsel for the respondents equally vehemently submitted that from the facts and circumstances which are brought on record in the departmental enquiry it is clear that for more than 5 years the applicant remained absent and he did not respond even for the advice of his official superior, he did not even attend the civil hospital of the district where he resided in Rajasthan. A Sub Inspector had to be deputed to convince him to respond to the notices issued to him and in the facts and circumstances he submitted that there is no illegality in the punishment imposed by the disciplinary authority and the order of the appellate authority.
He further submits that in view of the facts and circumstances the punishment imposed on the applicant is not shockingly disproportionate to misconduct which is proved against him.
The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:
(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-
"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-
"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.
In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."
Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-
"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence."
In view of the facts of the case narrated above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice and also as in the peculiar facts and circumstances of the case the punishment is not shockingly disproportionate, the OA requires to be dismissed.
Accordingly, OA is dismissed. No order as to costs.