T / * IN THE HIGH COURT OF #72: + w.P.(C) 879L12009 EX.CT. RAMESH CHANDER Through: versus DELHI AT NEW DELHI Ms.Manpreet 'iiti.:'"'i!". for Mr.Arun Bhardwaj, Adv. GOVT. OF N.C.T. OF DELHT & ORS. ..... Respondents Through: Mr.Aditya Madan, Adv. COMM: HON'BLE MR. JUSTICE PMDEEP NANDMJOG HON'BLE MR. JUSTTCE MOOL CHAND Cnic ^, oRDER -/o 31.09.2010 1. The petitioner who was appointed as constabre (Executive) in Delhi police on 13.09 .rg92 was served with a charge memo alleging that he was unauthorizedly absent from duty. In the summary of allegations B spells of absence were mentioned. The charge memo reads as under: l, Inspr., Ranbir lingh, Addl. _{fo^/!ajpat Nagar charge you const. Ramesh chander No.1g42lso' ttrat ,'itrile pos'teci -in P.s. Badarpur and p.s.c.R. park, south- Distt., rri"* o"lni you have absented yourserf unauthorizedry, wiriruriv-#o without any intimation from the assigned- duties on il " following occasions:_ st. Absent Arrival P.S. \ Period of Absent D.D.No. Drla DD.No Date 1 67-B Day Hrs mns. L I ,L,.QUI) 36-B 2.3.0L Badarnr L04 18 15 2 64-B 7.3.200t 30-B 12.L2.01 -Do- 208 16 15 15 3 25-B 13.12.01 30-B L6.L.02 -Do- 35m 6n 4 78-B t7lLg.L.Ot 27-B 16.5.02 -Do- 60 5 57-B 20.5.02 23-B L.6.02 -do- 11 15 30 6 72-B 6.6.02 35-B 6.8.O2 -do- 60 7 4I t2.8.02 39 16.1.03 Distt.lines 155 8 39 16.1.03 41-B 13.2.02 Distt.Lineg C R Parlz 27 9 58-B 28.2.03 13-B r4.5.03 C.R.Park 73 9 35 10 38-B 17.5.03 24-B 13.6.03 -do- 26 27 45 The above No.1842lSD dereliction w.P.(c).879t/2009 act on the part amounts to gross of duty which of Const. Ramesh Chander misconduct, negligence and renders you liable for Page J of6 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 6 .\ I departmental action punishable under provision of Delhi police (punishment & Appeal) Rules, igeO. 2. The respondent has not contested the proceedings. The inquiry officer conducted an ex parte inquiry and concluded as follows: "The some and substance of the ailegation against the delinquent constable in the DE *"r"-ih.t he had absented himserf unauthorizedly, wiilfuily and without any information from the asiigned duties on various occasions. During co,uf.9. o_f enquiry r=t was ooierveo *rat Fw-LFw-g, PW-4 and pw-6 are the materiar *intn"rr", in the DE. They need not to be discussed in the DE as they have produced onry the rerevant recordi of ansenceTflosting related to.delinquent const. PW-2 and pW-5 are formal witnesses in the DE. Both the witnesses has given ff," sequence of events . anq sending of ,."portr- with recommendation/remarks of controllin-g officer fbr tating or ' necessary,dis.ciplinary actions against Ine oelinquent'const for his unlimited abience in v-arious occasions from the duty. Both. the pw's confirm the facts of summary of alf egation. From the above discussion it is transpired that const. Ramesh chander No.rg42/sD is rraoiiuir aosentee.-tn lur" he had any probrem he.-shourd rrave .pp"ur"d before your immediate controiling officer to iort "ri his probl"rr. ir n" was sick or was not in a position to attend tne onici.t orty he shourd have informed'the departr"nt through pr..,onl o,. other possible means regarding his position oi rre srrouro have_appfied for reave or snorito have foilow so No.111 and ccS Rures. But he did not oo so ind faired to alopt any regar procedure. Moreover he oio noi ;oin-ir," or proceedings tif r the end and courd not produce my substantive proof/documents in his defense to refute the allegation leveled against him in the O.E. Conculsion In view of the statement of pw,s and documents in DE fire as discussed above the undersigneo has arrived at the conclusion that the charge againri .onrf. Ramesh chander No.J'842/sD stands prov6d in tne oeparimentat enquiry.,, 3. Based upon the findings returned by the inquiry officer vide order dated 0L.04.200.5 the disciplinary authority directed his removal from service with immediate effect and directed ihat the period of his f w.P.(c).8791/2009 Page 2 of 6 7 t absence be treated as not spent on duty. The appeal filed by the petitioner was also rejected by the Appellate Authority vide order dated 03.07.2006. 4. The petitioner approached the Central Administrative Tribunal vide o.A.No.L342l20o7 while admitting his absence, the principle defence raised by the petitioner was that he remained absent only on account of his medical illness. He also stated that he sent medical certificates and also informed the inquiry officer about his health but the inquiry officer instead of sending him for medical examination proceeded ex parte and has returned the findings which are contrary to facts and law. The Tribunal has taken note of the submissions made by the petitioner in paragraph 3 and 4 of the impugned order which reads as under: 3. The principal contention raised by the applicant is that the disciplinary proceedings initiated against him suffer from basic irregularities, as he was put into a position equivalent to double jeopardy. Mr. singal submits that prejudice had arready be fallen on him on the score. By Annexure A-7 dated 07.r0.2002, the Additional Dy. commissioner of police had informed him that he had been absent on five spells starting from L7.LL.2000 to 20.05.2002. tt also stated that the above conduct amounted to gross misconduct and dereliction of duties. still more, he had been informed that if he did not show cause within fifteen days of the receipt of the notice, the period will be treated as dies non for all purposes. A similar show cause notice had been issued as Annexure A-8 on 31.L2.2002 as well, alleging that he was absent from 07.06.2002, running to 61 days and if he did not show cause, the period will be treated as dies non. As a matter of fact, it is submitted that Annexure A-8 had been followed by Annexure A-g on L7.05.2003 whereby the period of 61 days had been treated as period not spent on duty and was not being regularized. The plea taken by the counsel is that when Annexure A-i. was issued thereafter on 14.05.2003, the unauthorized period referred to in the earlier orders were also shown as absent period, and in fact, denovo, absence for this period was alleged as a misconduct actionable under the ccs (conduct) Rules. counsel further submits that Annexure A-3 charge of 19.05.2003, further incorporated instance of unauthorized absence for a further period of 99 days, as well. The submission was that when a show cause notice had been issued and the period of unauthorized absence had been shown as having been treated w.P.(c).8791/2009 Page 3 of6 (o t as dies non, in respect of the same period, further disciplinary proceedings could not have been initiated, since the jurisdictional and correctional power vis-a-vis the lapse stood already exercised. What was presently wielded amounted to a review, and so long as statute did not confer such power, the proceedings were void. 4. The second aspect highlighted is that there was a material difference, between the first order served and the charge issued, as additional period of absence had been incorporated and although in the final order, only the original absence had been found as highrighted and proved, the chaiges were imprecise and, therefore, it was not possible of being comprehended and defended. 5. According to the respondents, the contentions as raised by the applicant were not at all sustainable. lt was a case of chronic absentism. The initial advise given over to the applicant, that the period is being treated as dies non, was intended to straighten the records. He submits that prescription of dies non could not have been equated to imposition of a penalty. Referring to Rule 5 of the Delhi Police (Punishment and Appeal) Rules, he submits that nine items of punishment are listed and it do not include dies non. Punishments have been categorized as major and minor punishments, but regularization of services as dies non could not have come to be recognized as an penalty. All the more, by later proceedings such orders had been recdlled. In view of the chronic absentism as forthcoming from his part, it had been decided to initiate action under the Discipline and Appeat Rules. However, there was no co-operation forthcoming as expected of a disciplined person and the proceedings had been conducted ex parte in the aforesaid circumstances. The petitioner's plea that he was mentally disturbed, was a statement coming from him, never corroborated, and such a plea could not have been possible to be entertained as the person was coming off and on to attend to the work and keeping away as he liked. lt showed a conduct whereby it would have been possible to assume that he was unfit to be accommodated in service. The I w.P.(c).8791/2009 Page 4 of 6 /l enquiry fully substantiated the misconduct, and there was no reason for interference. 6 The Tribunal taking note of the submission made from both the sides concluded that the record of the proceedrngs shows that in spite of opportunities being offered, the applicant had turned his face away and has not bothered to partake in the inquiry. Principles of natural justice, has to ensure that there is no arbitrariness involved while dealing with the -rights of a person. lf a person is relunctant to defend h!;nself in spite of being offered an opportunity, rt may not be /F- -'frsible for him at a later stage to come and complain that he has i\ been subjected to prejudice. There is nothing to indicate that he was mentally sick, but the conclusion can be that he was actrng irresponsibly. ln the totality of the circumstances, defrnitely we come to the concluston that there has not been any arbitrariness on the part of the respondents in dealing with the case of the applicant. The imposition of penalty was, therefore, warranted. We dismiss the application. Howeven there will be no order as to costs. 7. Before us the petitioner has reiterated his submissions as were made before the Appellate Authority and the Tribunal. However, we find that no indulgence can be granted to the petitioner for the reason, the petitioner has not been able to show us any medical certificate which may substantiate his illness. Even before the Appellate Authority the petitioner only submitted that he was suffering from mental depression and remained under treatment at Institute of Human Behaviour and Sciences. The appellate authority has noted that the certificate of illness spanned only 2 months and no more. lt has been submitted that the petitioner while posted at Police Station Badar Pur and C.R.Park absented himself from duty on 8 occasions for a period of 793 days willfully. During the aforesaid period several absentee notices were ordered to the petitioner vide Memo dated 18.04.2001, 16.07.2001, 20.L2.2001 and 04.]-0.2002 with a direction to resume the duty at once failing which he was informed that departmental action would be taken against him. His w.P.(c).8791/2009 Page 5 of 6 l2_ t past record also revealed that he had absented from duty on 64 different occasions. Even during the inquiry proceedings he had not co-operated as he did not join the proceedings despite service of notice. The inquiry officer submitted his finding holding the petitioner guilty of charge. Tentatively agreeing with the findings of the inquiry officer, a copy of the finding was served upon the petitioner on 27.I2.2003 against which petitioner preferred a representation before the disciplinary authority. He was afforded 9 opportunities for oral submissions but he did not turn out. Thus, the disciplinary authority imposed penalty of removal from service. The appeal was also rejected. The Tribunal also not granted any indulgence to the petitioner for good reasons as discussed above. We also do not find any ground to interfere with the impugned order. 8. Accordingly, the writ petition is dismissed with no orders as to costs. -frY PRADEEP NANDMJOGJ AUGUST 3]., 2O1O 'anb' i\f\ w.P.(c).8791/2009 Page 6 of 6