Shanker Raju, Member (J)
1. Applicant, a Constable in Delhi Police, has assailed an order dated 13.2.2003, whereby he has been imposed a major punishment of forfeiture of one year’s approved service permanently, with reduction in pay and suspension period has not been treated as spent on duty as well as the period of absence as dies non. Also assailed is an appellate order dated 20.10.2003, affirming the punishment.
2. Applicant, who was proceeded against for a major penalty for remaining absent for a period of 98 days, was alleged to have willfully and deliberately absented himself and had not responded to absentee notices. After conclusion of the enquiry, the Enquiry Officer has held him guilty of the charge entailing a punishment of removal, which was set aside by the High Court of Delhi in CWP No. 6693/2000 on 11.3.2002, remanding back enquiry from the stage of hearing when applicant had remained absent. As a result thereof, applicant was reinstated in service on rejection of SLP on 2.9.2002 and the departmental enquiry (DE) was resumed. During the course of enquiry, the EO has framed the following charge:
I, Inspr. Ranbir Singh, hereby charge you, Ct. Anil Kumar, No. 10541/DAP (now 10530/DAP) that while posted in ‘E’ Block Security, absented yourself deliberately and willfully from the duty assigned to you on the following occasions as per DD entries for the period as noted against each:
Sl. No. D.D. No. of absenc D.D. No. of arrival Day Hours Minutes with date Period of absence 1. 31 B, dt. 23.03.93 32 B, dt. 07.05.93 46 03 10 2. 93-B, dt. 28.06.93 42-B, dt. 20.08.93 52 15 45 3. The E.O. on submission of defence statement of applicant recorded the following finding to hold him guilty:
The plea of the delinquent Ct. that he was sick on both occasion have been duly authenticated and supported by the Govt. Doctor of Senior Medical officer rank in person, cannot be overlooked outrightly. But delinquent Ct. failed to intimate and seek permission for the medical rest from the competent authority and thereby flouted provisions of Rule 19 (5) of C.C.S. (Leave) Rules and S.O. No. 111.
4. The disciplinary authority (DA) imposed a major punishment on the ground that applicant had not sought proper permission of the competent authority before availing medical rest, which on appeal, when affirmed, gives rise to the present OA.
5. Learned Counsel of applicant has taken several contentions to assail the impugned orders, however, at the outset, stated that whereas the charge framed against applicant was of willful and deliberate absence and non-responding to the absentee notices, yet he has been held guilty by the EO of the charge of failure to intimate and seek permission to medical rest, which has not been specifically leveled against him and as he has not been accorded an opportunity to deny and rebut the charge, the same is in violation of Rule 16 (ix) of the Delhi Police (Punishment and Appeal) Rules, 1980. It is contended that on an extraneous charge, applicant has been punished.
6. Learned Counsel would also contend that as per FR 54 in case of suspension when it is decided to hold a further enquiry, the government servant will be entitled to full pay and allowances and as the respondents have decided the suspension period as not spent on duty is not a correct proposition.
7. On the other hand, learned Counsel of respondents vehemently opposed the contentions and stated that applicant has been punished after following the due procedure of law and his failure to avail medical rest before seeking prior permission is a misconduct under Standing Order (SO) No. 111 and Rule 19 (5) of the CCS (Leave) Rules, 1972.
8. Learned Counsel would also contend that applicant has no right to leave and the intervening period from the date of removal to the date of reinstatement, i.e., from 6.9.1995 to 2.9.2002 has been rightly treated as suspension period as per the provisions of Rule 10 (4) of CCS (CCA) Rules, 1965 and SO No. 123.
9. On careful consideration of the rival contentions of the parties and having regard to the decision of the Apex Court in M.V. Bijlani v. Union of India and Ors. and keeping in light the provisions of Rule 16 (ix) of the Rules ibid, where if enquiry established a different charge, the EO will record a finding only after the delinquent is afforded an opportunity to effectively rebut the same. As we find from the charge framed against applicant that there is no reference seeking medical rest without permission as a charge, hence holding applicant the guilty of this charge when the DA has also punished him on the same charge would amount to holding him guilty of an extraneous charge and punishment on the same, which without an opportunity to effectively rebut, is not in consonance with law.
10. As regards period of suspension, the same has been decided under Rule 10 (4) of the CCS (CCA) Rules, 1965, according to which, where a penalty of dismissal has been set aside as a consequence of the decision of a Court of Law and it is decided to hold a further enquiry, as in the present case the High Court has remanded back the matter (supra) to respondents for a further enquiry, applicant has to be deemed suspended. The decision of the respondents to hold applicant under suspension and on imposition of punishment the treatment of the aforesaid period, as not spent on duty, would now is to be subjected to the final outcome of the implication of the present order.
11. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders are set aside. Respondents should proceed further, if so advised, against applicant from the stage of framing of charge and on accord of reasonable opportunity, law shall take its own course.
12. As regards intervening period from 6.9.1995 to 2.9.2002, the same may be decided after the outcome as per FR. No costs.