Ex. Ct. Dharam Dass vs Govt. Of NCT Of Delhi Through And Ors

S.N. Terdal, J

We have heard Mr. Sachin Chauhan, counsel for applicant and Ms. Neetu Mishra for Mrs. Rashmi Chopra, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"a. To quash and set aside order 19.11.2005 whereby extreme punishment of dismissal from service was imposed upon the applicant and order dated 09.10.2012 whereby the statutory appeal of the applicant is rejected by the Appellate Authority and to further direct the respondent to reinstate the applicant back in service with all consequential benefit including seniority & promotion and pay and allowance;

b. To set aside the findings of the Enquiry Officer; Or/and

Äny 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 the applicant was charge sheeted for being absent from duty for about five months. The summary of allegations is extracted below:-

"It has been alleged against Const. Dharam Dass No. 1271/E that while posted at P.S.Krishna Nagar he was transferred to Distt.line/E from Krishna Nagar vide office order no.18083-93 SIP dated 28-11-2003. As per report of P.S.Krishna Nagar he was departed vide D.D.No.23-B dated 2-12-2003 to Distt.Line. But instead of joining his duty at Distt. Line/E on 3-12-2003 he did not turn up for duty and a D.D. entry No. 38 dated 24-4-2004 was lodged at Distt. Line/East in this regard. Till date he has neither resumed his duty nor any information has been received in this regard.

The above act on the part of Const. Dharam Dass No.1271/E amounts to gross misconduct, carelessness, negligence in discharge of his official/Government duties and unbecoming of Police Officer, which renders him liable to be dealt with departmentally u/s 21 of D.P. Act 1978."

Alongwith the summary of allegation, list of witnesses and list of documents etc. as per rules were served on the applicant. Thereafter a departmental enquiry was held. During the departmental enquiry also several times the applicant was called upon to participate in the departmental enquiry, yet the applicant remains absent. Despite his absence, the departmental enquiry was held as per rules and PW-1 to PW-4 were examined and the Inquiry Officer after discussing the evidence vide its report dated 30.06.2005 held that the charge against the applicant was established. The relevant portion of the inquiry report is extracted below:-

"I have gone through the P.Ws and during the D.E. proceedings 4 P.Ws have been examined. P.W.1 Const. Prakash Nath No. 978/E has proved his posting from P.S. Krishna Nagar to East Distt. Line. P.W.2 Inspector Shiv Ji Tiwari No. D-1/484 has proved forwarding letter to the Senior Officers for taking departmental action. P.W 3 H.C. Krishan Kumar No.492/E has proved that he lodged D.D.entry No. 38 dated 24-4-2004 regarding not joining of defaulter Const. at Distt. Line East wilfully and intentionally absence. PW.4 H.C. Jitender No. 429/E has proved his departure from P.S.Krishna Nagar to East Distt. Line vide D.D.No. 23-B dated 2-12-2003.

In this way, all the above four prosecution witnesses have proved, beyond doubt that Const. Dharam Dass No. 1271/E absented himself unauthorizedly and wilfully.

Conclusion

In view of the above discussion of evidence and totality of circumstances, the charge served upon Const. Dharam Dass No. 1271/E stands proved without any doubt."

The disciplinary authority after going through the entire material and hearing the applicant in orderly room passed an order dated 19.11.2005 imposing a penalty of dismissal from service with immediate effect. The relevant portion of the discussion of the disciplinary authority is extracted below:-

"In the departmental proceedings against the defaulter, the enquiry officer has examined 4 PWs and they have supported the prosecution version. Hence, it has been clearly proved beyond any shadow of doubt that the defaulter absented from duty unauthorisedly and wilfully and without any intimation or prior permission of the competent authority for a long period. The defaulter has been given ample opportunities to defend his case during DE proceedings and at the time of deciding the DE. He neither submitted any written representation against the findings of the E.O nor appeared before the undersigned in orderly room despite having been given ample opportunities which shows that he has nothing to say in his defences. His lapses/misconduct in the past have been condoned by awarding less punishments but he has miserably failed to improved and has consistently shown a disinclination to obey the discipline of a uniformed service. Discipline is a sine qua non of uniformed service and such type of continued and long absence from duty badly affects the discipline of other members of the force and also puts adverse effect on the efficiency of the policed organization. In the instant case the defaulter remained unauthorized and wilfully absent without any intimation or prior permission of the competent authority for a long period in violation of rules and regulation on the subject. Unauthorized absence is one of the severest form of indiscipline in Police service and no one can be allowed to absent himself from duty at his sweet will, which is against the public interest.

I have carefully gone through the D.E file, findings submitted by the E.O and other relevant records available in the D.E. file. The E.0 has given ample opportunity to join the D.E. proceedings to the defaulter but he did not avail the same. Keeping in view totality of facts and circumstances explained above, I have reached to the conclusion that continuation of defaulter constable Dharam Dass, No. 1271/E in service is prejudicial to the interest of service and it will intigate other members of the force to the indiscipline. Therefore, I, Ajay Chaudhary, Addl. Dy. Commissioner of Police/East district do hereby order to dismiss Constable Dharam Dass No. 1271/E from service with immediate effect. His absence period w.e.f. 03.12.2003 to date is treated as not spent on duty, hence the same is not being regularized in any manner."

The applicant filed an appeal. The appellate authority also after going through the appeal and hearing the applicant in person dismissed the appeal of the applicant vide order dated 9.10.2012.

The counsel for the applicant vehemently submitted that no absentee notice was issued to the applicant before starting the departmental enquiry and that the punishment imposed on the applicant is disproportionate to the charge levelled against him. In support of his submission, the counsel for the applicant referred to the following judgments of the Tribunal and Hon'ble High Court:-

(1). Vipin Kumar Vs. Govt. of NCTD through the Commissioner of police and others (OA 1133/2013).

(2) Ex.Head Constable (AWO) Dinesh Kumar Vs. Govt. of NCTD through the Commissioner of police and others (OA No. 2100/2005).

(3) Constable Satish Kumar Vs. UOI & Others (OA 139/98)

(4) Ex. Constable Trivender Kumar Vs. Govt. of NCT of Delhi & Ors. (W.P (C) 9038/2009)

(5) Vinod Kumar Vs. The Commissioner of Police & Ors ( W.P (C) 1354/2015).

But, however, all the above said judgments are rendered in view of the facts and circumstances available in those cases.

In view of the facts and circumstances narrated above and the reasons given by the disciplinary authority and the appellate authority which have been extracted above, in our opinion the punishment imposed is not grossly disproportionate to the charge levelled against the applicant. As such, the punishment imposed by the respondents authorities cannot be interfered with.

Accordingly, OA is dismissed. No order as to costs.