Hon’ble Dr. Chhabilendra Roul, Member (A)
1. The present OA has been filed by the applicant seeking the following reliefs:
“8.1 To quash and set aside the order dated 13.06.2014 whereby the punishment of forfeiture of two years Approved service temporarily entailing proportionate reduction in his pay for a period for two years is being imposed upon the applicant and order dated 05.06.2015 whereby the statutory appeal of the applicant has been rejected and to further direct the respondents that forfeited years of services be restored as it was never forfeited and reduced pay of applicant be restored with all consequential benefits including seniority and promotion and pay and allowances.
8.2 To further direct the respondents that the absence period of 493 days w.e.f. 18.06.2012 to 20.10.2013 be decided as 'Spent on Duty' for all intents and purposes.
8.3 To set aside the findings of the Enquiry Officer.
8.4 To quash and set aside the order of initiation of D.E. 12.06.2013.
Or/and
Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant.”
2. Brief facts of the case is that the applicant was appointed as Head Constable (Ministerial) in Delhi Police in the year 1986. Subsequently, he was promoted to the rank of ASI (Ministerial) in 1995 and as SI (Ministerial) in the year 2009.
2.1 The applicant proceeded on 12 days Earned Leave (EL) with effect from 24.10.2011, which he extended for further seven days. He was supposed to come back from EL on 12.11.2011 but he did not turn up for duty. He requested for medical rest for 67 days upto 18.01.2012. The respondents issued letter dated 11.07.2012 to the applicant to explain as to why his 67 days medical rest with effect from 12.11.2011 to 17.01.2012 should not be treated as Dies Non and a departmental proceeding should not be initiated against him for the above mentioned lapse. Though the applicant received the notice on 23.01.2013, he did not reply within the stipulated period. Another notice was also issued on 9.01.2013. After receipt of his explanation on 10.04.2013, the competent authority decided to conduct a departmental inquiry vide order dated 12.06.2013. The Inquiry Officer (IO) conducted a regular inquiry and submitted his report. He concluded that:
“On perusal of all documents and statements, I am of the considered opinion that the allegation of running absent without any intimation/permission does not stand proved whereas the allegation of willful absence from the duty is partially proved.”
2.2 The Disciplinary Authority (DA) agreed with the findings submitted by the IO and accordingly, a copy of the inquiry report was served upon the applicant. The DA considered the representation dated 7.04.2014 submitted by the applicant in respect of the inquiry report, and heard the applicant on 6.06.2014. After considering all the facts and circumstances of the case, the DA imposed the following punishment:
“…..I, M.S. Randhawa, Addl. Deputy Commissioner of Police-I/east District, Delhi hereby award the punishment of forfeiture of two years approved service temporarily to SI (Min.) Umesh Kumar, No. D/1558 (PIS No. 27860127) entailing proportionate reduction in his pay for a period of two years. His absence period of 493 days w.e.f.18.06.2012 to 24.10.014 is also decided as period not spent on duty for all intents and purposes on the principal of ‘No Work No Pay’ and the same will not be regularized in any manner. However, his medical rest of 67 days w.e.f. 12.11.2011 to 19.01.2012 is decided as leave of kind duty.”
2.3 The applicant filed an appeal to the Appellate Authority (AA) who, vide order dated 5.06.2015, rejected the same upholding the decision of the DA. Being aggrieved, the applicant has filed the present OA seeking the aforementioned reliefs.
3. Learned counsel for the applicant submits that the applicant was appointed as HC (Ministerial) in Delhi Police in the year 1986 and promoted to the rank of ASI (Ministerial) in 1995 and finally promoted to SI (Ministerial) in the year 2009. Vide order dated 12.06.2013, the applicant was dealt departmentally on the allegation of remaining unauthorisedly and willfully absent from duty from 13.06.2012 till he resumed duty on 24.10.2013. The IO submitted his finding which is placed at page 30 of the paper book. Perusing all the statements and documents placed before him, the IO exonerated the applicant from the allegation of remaining absent without any intimation or permission and further held that the charge of willful absence was partially proved. Learned counsel for the applicant draws attention to the order dated 13.06.2014 passed by the DA relying upon the inquiry report, wherein it is recorded as under:-
"(i) Willfully and unauthorizedly for a period of 493 days without any intimation, which is clear violation of CCS (Leave) Rules 1972 and S.O. 111 of Delhi Police.
(ii) Hence, it is clearly established that his absence of 493 days was willful and the defaulter SI (Min.) managed the medical rest from private doctor only to cover up his absence period."
3.1 Learned counsel for the applicant submits that while the IO has clearly exonerated the applicant/not proved the charge that the applicant was remaining absent without any intimation or prior permission, the DA in fact has given a contrary statement. He states that further the DA has taken extraneous material under consideration when it is stated that the applicant had managed the medical rest on the advice of a private doctor, only to cover up his absence period. He states that this was neither the allegation in the show cause notice/chargesheet nor the same has been proved against the applicant. Therefore, the DA was prejudiced and was bent upon punishing the applicant. Furthermore, he avers that the findings of the IO are contradictory. Once the IO has concluded in his findings that the allegation against the applicant regarding remaining absent without permission was not proved, the second line where the IO mentions that the allegation of willful absence from duty was partially proved could not be accepted. He relied upon a judgment dated 17.11.2004 passed by a Coordinate Bench of this Tribunal in OA No. 535A and 656 of 2004. Paras 9 and 10 thereof reproduced as under:-
"9. We have already reproduced above the operative part of the report of the inquiry officer: The inquiry officer, as already referred to above, had framed a charge. This pertained to the fact that the applicants were doing illegal checking of the vehicles near Lokesh Cinema Nangloi on Rohtak Road with malafide intention and ulterior motive. The reproduced portion of the report of the inquiry officer speaks volume because certain findings had been arrived at. Ultimately, he concluded that the charge is partly proved. We are at a loss to understand as to which part of the charge has been stated to have been proved and which is not proved. It is too vague and indefinite finding, which has been accepted by the disciplinary authority.
10. A word of caution only may be added, it is hoped that while making a report, a specific finding should be arrived at and the disciplinary authority is also expected simultaneously to look into this fact rather than accepting the same as presented.”
The learned counsel for the applicant avers that the IO has not given a specific finding. Hence, not much reliance could be placed on such findings. The AA has erred in relying on such defective findings of the IO as well as bringing new and extraneous factors in his reasoning while passing the punishment order.
3.2 Continuing the arguments, learned counsel for the applicant draws our attention to the order passed by the AA dated 05.06.2015, wherein the AA has recorded that the applicant could not explain as to why he preferred to have treated from an ordinary non CGHS clinic instead of his treatment at CGHS Dispensary/Government Hospital. The applicant had stated that as the applicant was sick and in an emergency, he had no option but to go to a non-CGHS hospital. This contention of the applicant was supported by medical certificates annexed from page 82 onwards. The learned counsel for the applicant states that the CCS (Leave) Rules had not mandated that only the medical certificate issued by the Government authorised or Government panel hospital/Doctor could be accepted. The Rules clearly mention that the medical certificate with respect to the illness of person would be sufficient to establish his illness for the purpose of seeking leave under the CCS Rules.
3.3 Further continuing his arguments, the learned counsel for the applicant relies on the judgment dated 23.08.2022 in OA No. 2121/2015 passed by the Coordinate Bench of this Tribunal. Para 10 of the same reads as under:-
“10. A careful perusal of the report submitted by the inquiry officer and the orders passed by the disciplinary and the appellate authority reveals that while it has been conclusively established that the applicant has been continuously absent from duty, none of them have held that this absence has been willful. Therefore, some reasonable benefit of doubt should go to the applicant that his absence was on account of his peculiar circumstances, i.e., his medical condition of depression which prevented him from performing his duties. We are not going into the veracity of this fact or averment but merely drawing an inference on the basis of documents of records. These documents on record have not been disputed by either of the parties. Moreover, we are of the well considered opinion that an absence from duty stated to be on account of a medical condition, though may be deserving of a major penalty, is surely not deserving of a penalty as harsh as dismissal from service. In fact, in terms of the penalties which can be imposed in a disciplinary proceedings, dismissal is the harshest of the penalties whereas absence from duty cannot be considered to be the gravest of misconducts. Moreover, while imposing this penalty, the respondents have not even passed any order with respect to the entitlement or
eligibility of the applicant for grant of compassionate allowance. Accordingly, we cannot sustain the impugned orders passed by the disciplinary authority and the appellate authority. Accordingly, both the orders, i.e., order dated 02.01.2014 bearing no. 57-156/НАР (PII)/III Bn., DAP and order dated 03.03.2015 bearing no.468-71/P.Sec./Addl.CP/AP are set aside. The matter is remanded back to the respondents to consider the matter afresh against the light of the observations made hereinabove and pass the order after re-examination of the facts and circumstances of the case ensuring that the penalty so imposed adheres to the principle of proportionality in relation to the alleged misconduct. The competent authority amongst the respondents shall give effect to these directions and pass an order afresh within a period of eight weeks from the date of this order. The applicant shall be entitled to all the consequential benefits, if they so accrue thereafter, under the relevant rules and law on the subject.”
3.4 Summarising his arguments, he states :
(1) Once the inquiry officer has already exonerated the applicant from the charge of unauthorised absence, the DA could not punish him with respect to the same. He clarifies that relying on part of the charge for which the IO has already exonerated the applicant cannot be punished.
(2) IO could have dissected the charge, wherein the part of the charge has not been proved while the other has been partly proved.
(3) IO has concluded that there was no ground to prove that the delinquent ASI was absent from duty without intimation. The DA has in fact ignored this finding and proceeded with the penalty order.
(4) The conclusion of the IO has two parts which are contrary with each other, there being a contradiction in the conclusion itself. The finding, which is against the delinquent could also not be accepted by the DA. IO's report needs to be quashed for this limited reason itself and as a consequence, the subsequent orders as well.
(5) In view of the unambiguous finding of the IO "the allegation of running absent without intimation/permission does not stand proved." The DA order has clearly recorded that “it was established that absence of 493 days was wilful." The DA could not proceed with this charge without issuing the disagreement note.
(6) Issue has been decided by the Coordinate Bench of this Tribunal in OA Nos. 535A & 656 of 2004, wherein this Tribunal relying on the Standing Order No. 111 has conclusively decided that once there are medical documents to support the absence of the delinquent the period cannot be treated as dies non what to say of inflicting any penalty for no work no pay.
(7) Medical certificates have since been provided in terms of the leave rules and in case there was any doubt with respect to their authenticity, the respondents were obliged to get the same verified and only after verification would the respondents decide the genuineness of the certificate and then ignore or accept the same.
(8) places reliance upon para 6 of the judgments of the Hon'ble Apex Court in Bhagat Ram vs. State of Himachal Pradesh, AIR 1983 SC 454 [LQ/SC/1983/32] and in Sohan Lal vs. Union of India & Ors. 2006 (2) AISLJ (CAT) 88.
4. The learned counsel for the respondents, Mr. Amit Yadav, opens his arguments by stating that the scope of judicial review in disciplinary proceedings is limited. He asserts that only illegality/irregularity pointed out by the applicant on technical or legal grounds could open the proceedings to judicial review. As the applicant has not been able to point out any such illegality or irregularity, either technical or otherwise, the Tribunal may not interfere in the proceedings. Mr. Yadav draws strength from the judgments of the Hon’ble Apex Court in B.C. Chaturvedi vs. Union of India and Ors., 1995 SCC (6) 749, Union of India vs. P. Gunasekaran, (2015) 2 SCC 610 [LQ/SC/2014/1233] and Regional Manager, U.P.S.R.T.C, Etawah & Ors. vs Hoti Lal & Anr., 2003 (3) SCC 605 [LQ/SC/2003/202] .
4.1 Regarding the facts, he emphasizes on the contents of the counter reply (page 2) and argues that the applicant was on medical rest for two days, but thereafter, he did not join his duties. Despite the respondents' efforts to procure his presence, including sending notices by post and a special messenger, the applicant chose not to join his duties. Mr. Yadav, learned counsel for the respondents contends that the medical certificates provided by the applicant are not issued by a Government Hospital and do not explain any medical condition that could prevent him from joining his duties. He states that despite living in his village, the applicant could easily come to Delhi for medical treatment, indicating that it was not his medical condition preventing him from joining duties but rather his callous attitude and irresponsibility.
4.2 He further draws attention to para 9 and 10 of the counter reply, which read as under:
“9. That therefore, keeping in view the facts and circumstances of the case in totality, the disciplinary authority had awarded the punishment of forfeiture of two years approved service temporarily to applicant SI (Min.) Umesh Kumar, No. D/1558 (PIS No. 27860127) entailing proportionate reduction in his pay for a period of two years. his absence period of 493 days w.e.f 18.6.2012 to 24.10.2013 was decided as period "not spent on duty" for all intents and purposes on the principal of "No Work No Pay" and the same will not be regularised in any manner, however his medical rest of 67 days w.e.f 12.11.2011 to 19.01.2012 was decided as leave of kind doe vide order No. 3642-56/HAP (P-I)/ East dated 13.06.2014.
10. That the applicant filed an appeal to the Appellate Authority i.e. Joint Commissioner of Police, Eastern Range, Delhi. After carefully gone through appeal preferred by the applicant and other file record, the Appellate Authority had rejected his appeal vide his office order No. 1889-94/SO/ER (AC-II) dated 05.06.2015 in view of following grounds: -
i). That medical certificates dated 27.9.12, 17.12.12 and 23.10.13 issued by the private doctors and prescription of medicine & medical rest advised by the doctors were not submitted by the applicant at the relevant time to the competent authority. The applicant has failed to explain the reason as to why he could not join his duty whereas he was attending the D.E. proceedings. Further he could not explain as to why he preferred to have treatment from an ordinary non-CGHS clinic instead of his treatment at CGHS/Govt. Hospital.
ii). That the Hon'ble High Court of Delhi vide judgment dated 25.3.2015 in W.P. (C) 7606/2012- Sangeeta vs. UOI & Ors. has held that it is trite that leave cannot be claimed by an employee as a matter of right, it may be being a matter of entitlement. The difference being entitlement is something which one may have subject to fulfilment of certain conditions and right is something which one should have regardless of any conditions being fulfilled. The applicant was duty bound to fulfil certain conditions before availing medical rest/ leave which he failed to perform.
iii). That remaining absent or taking leaves without prior sanction exhibits irresponsibility and lack of interest in work on the part of the employee. Such an employee appears to be least interested in the duties and is not somebody who is devoted or maintains integrity. Such an employee is guilty of misconduct. Graver is the misconduct when the employee remains absent even without intimating the employer. In such cases the employer suffers for two reasons. First, the employee remaining absent, the work cannot be done. Second, since the employer has no intimation of the intention of the employer not to report for duty, the work cannot even be delegated to some other employee.”
4.3 Mr. Yadav argues that it is the bounden duty of the respondents to ensure that the applicant, who is part of the disciplined force is duty-bound to perform his duties. He further asserts that the punishment given to the applicant is commensurate with his conduct, and no intervention of the Tribunal is warranted in the instant OA.
5. The learned counsel for the applicant counters by stating that the rules do not prescribe that the medical certificate must be only from a Government institution or hospital. He argues that a medical certificate, as defined, could be from any authorized medical practitioner.
6. We have heard the learned counsels for the parties carefully and perused the record of the case thoroughly.
6.1 In the instant case, the learned counsel for the applicant has valiantly tried to establish that the IO has given a vague and contradictory finding. It is the assertion by the learned counsel for the applicant that when the IO has stated in his inquiry report that the charge against the applicant that he remained absent without intimating the concerned authorities is not proved, then he should not have come to the conclusion that the applicant remained absent willfully. We do not tend to agree with the contention of the learned counsel for the applicant that when the IO has stated that the charge against the applicant that he willfully remained absent has been partially proved, that implies that he did not remain unauthorizedly absent. By merely delving into the semantics of the words and phrases used by the IO, the learned counsel for the applicant has tried to find fault with the finding of the IO, which we do not agree. It is a fact that the applicant remained absent from duty and for the said period of absence, he has not been granted any authorized leave. For the said reason, he was charge sheeted and the IO found that he remained willfully absent from duty. Remaining absent willfully does imply unauthorised absence.
6.2 To support his argument, the applicant has cited order dated 17.11.2004 passed by a Coordinate Bench of this Tribunal in OA No.535A and 656 of 2004 (supra). The Coordinate Bench in the said OA has held that it is better that IO should give clear and unambiguous finding. However, any finding which says that charges are partially proved should be weighed against the facts and circumstances of the case. In the instant case, the facts and circumstances point out that the applicant remained unauthrizedly absent from duty and it has been proved from the records and evidence produced before the IO and duly perused by the DA before awarding the punishment.
6.3 The second ground taken by the learned counsel for the applicant is that the DA has taken extraneous matter into consideration while awarding the punishment. The extraneous factor is that the applicant remained on medical rest on the advice of a private doctor. This matter of medical advice from a private doctor is not crucial or relevant for the ultimate finding by the IO. The IO has conclusively held that the applicant has remained “willfully absent” from duty and DA has also concluded that it was unauthorized absence. It is a fact that the applicant has not taken any authorized leave for the period for which he was charge sheeted and the IO found that he remained willfully absent for that period.
6.4 The third ground taken by the learned counsel for the applicant is that the AA vide order dated 5.06.2015 has recorded that the applicant could not explain as to why he preferred to take treatment from an ordinary non-CGHS clinic instead of his treatment at a CGHS recognized hospital. This opinion of the AA has no significant bearing on the final finding by the AA. The AA has agreed with the punishment imposed by the DA and he has also agreed that there is no infirmity in the finding of the IO.
6.5 The judgment cited by the applicant in OA 2121/2015 (supra) of a Coordinate Bench of this Tribunal, at best, can be read in the context of peculiar facts and circumstances of that case. Particularly, in the order dated 23.08.2022 in the said OA, it has been mentioned that:
“Therefore, some reasonable benefit of doubt should go to the applicant that his absence was on account of his peculiar circumstances, i.e., his medical condition of depression which prevented him from performing his duties.”
In view of this, the ratio of the judgment cannot be relied in the instant case.
6.6 We fairly agree with the contention of the learned counsel for the respondents that the scope of judicial review in a disciplinary proceeding is limited. The Tribunal cannot sit as an appellate authority to re-appreciate the evidence already produced during the disciplinary proceedings. In the instant case as the learned counsel for the respondents has cited the judgments in B.C. Chaturvedi (supra), P. Gunasekaran (supra) and Regional Manager, U.P.S.R.T.C (supra), unless there is some illegality or irregularity or bias or malafide attributed to the Inquiry/ Disciplinary or Appellate Authorities or there is some procedural lapse so as to constitute violation of principles of natural justice, the Tribunal should not interfere in the orders of the disciplinary and appellate authorities.
6.7 In the instant case, the applicant has failed to adduce any malafide or bias on the part of the IO/ DA and AA. Similarly, the applicant has failed to adduce that there is any illegality or violation of principle of natural justice in conducting the inquiry or in the subsequent proceedings before the DA and AA.
7. In view of the above, the OA lacks merit and is hence dismissed. No order as to costs.
