C with Ms.Usha Jamnal and Mr.Mohammad Junaid Mahmood, Advs. along with ASI Puneet v. SATISH KUMAR

Judgment

1. This petition has been filed challenging the Judgment and Order dated 11.08.2023 (hereinafter referred to as the „Impugned Order‟) passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi, (hereinafter referred to as the „Tribunal‟) in O.A. No.2496/2016 titled Satish Kumar v. Govt. of NCT of Delhi & Ors., whereby the learned Tribunal had allowed the O.A. filed by the Respondent herein and set aside the punishment of dismissal from Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 service awarded to the Respondent herein and remanded the matter back to the Disciplinary Authority. Brief Facts: 2. The Respondent had joined the Delhi Police on 01.08.1989. While working as a Constable in the West District, the Respondent was issued two Absentee Notices, being No. 6005-08/SIP(West) and No. 2228/SIP(West) dated 24.05.2011 and 28.02.2012 respectively, for being absent from duty without any intimation/permission on nine different occasions from 10.05.2011 to 05.12.2012. The Respondent, vide the said Absentee Notices, was asked to resume his duty immediately, however, he failed to do so. The details of leave without intimation/permission taken by the Respondent are as follows: Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023

3. It is the case of the Petitioners that a perusal of the service record of the Respondent would reveal that earlier also, the Respondent had absented himself on 74 different occasions, for which the Respondent was awarded various warnings/censure/major punishments. However, the Respondent, being a habitual absentee, continued absent himself duty without intimation/permission from the competent authority. 4. It is the case of the Petitioners that keeping in view the conduct of the Respondent, a disciplinary inquiry was initiated against the Respondent, vide Order No. 3821-45/HAP(P-I)/West dated

06.03.2013, in terms of the Delhi Police (Punishment & Appeal) Rules, 1980 (in short, „Rules‟). 5. It is the case of the Petitioners that the Inquiry Officer prepared the summary of allegations, list witnesses, list of documents, and other relevant documents, and served the same upon the Respondent on

24.04.2013, against his proper receipt at his home. However, the Respondent did not the disciplinary inquiry proceeding deliberately, thereby, adopting delaying tactics. 6. It is the case of the Petitioners that a notice dated 02.05.2013 was issued by the Inquiry Officer to the Respondent, directing him to join the disciplinary inquiry proceeding on 05.05.2013, failing which ex-parte proceedings would be initiated on the said date. The said notice was duly received by the Respondent on 03.05.2013, against his proper receipt, however, he did not join the disciplinary inquiry proceeding. Consequently, the Inquiry Officer, having no alternative, Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 requested the Disciplinary Authority for permission to proceed ex- parte under Rule 18 of the Rules. 7. Upon such request, the Disciplinary Authority granted such permission, and thereafter, the Inquiry Officer conducted the inquiry ex-parte, during which 5 witnesses were examined by the Department in the absence of the Respondent. 8. It is averred that on the basis of the testimony of these witnesses, the Inquiry Officer framed the charge against the Respondent, which was duly approved by the Disciplinary Authority. The said charge was served upon the Respondent on 05.06.2013 against his proper receipt. The Respondent did not admit the Charge, and was accordingly, directed to submit his list of Defence Witnesses and Defence Statement. However, he failed to produce any Defence Witness or file any statement in his defence. 9. It is the case of the Petitioners that since the Respondent did not submit his defence statement in respect of the Charge, the Inquiry Officer proceeded to complete the departmental inquiry in accordance with the procedure prescribed under the Rules. 10. The Inquiry Officer thereafter submitted his findings on

18.06.2013, concluding that the charge framed against the Respondent stood proved beyond any doubt. 11. It is the case of the Petitioners that the Disciplinary Authority, tentatively agreeing with the findings of the Inquiry Officer, forwarded the findings to the RI/West District, vide Order dated

28.06.2013, for serving the same upon the Respondent with a Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 direction to obtain the Respondent‟s representation against the findings of the Inquiry Officer. 12. It is averred that the Respondent received a copy of the findings on 03.07.2013, against his proper receipt. The Respondent‟s reply to the findings was due on or before 12.07.2013, but he did not submit any reply. Thereafter, a communication, being U.O. No. 13259/HAP (P-I)/West dated 16.07.2013, was issued to RI/West District directing that the Respondent be called upon to submit his reply within two days, failing which the matter would be decided ex-parte on merits without any further reminders. 13. It is the case of the Petitioners that Constable Ashwani Kumar, No. 3242/DAP from District Lines/West District was deputed to serve the copy of the summons upon the Respondent at his residence. The said Constable visited the native village of the Respondent, where his

wife, Smt. Veena Devi, was found present. She informed that her husband, Sh. Satish Kumar, had gone to a nearby village. Accordingly, a copy of the summons was served upon the wife of the Respondent on 18.07.2013 against her proper receipt. 14. It is further the case of the Petitioners that the Respondent was given a last opportunity, vide office letter dated 20.07.2013, issued through RI/West, directing him to appear before the Disciplinary Authority along with his reply to the findings, on 22.07.2013 at 10:30 AM, failing which the departmental inquiry would be decided ex- parte on merits. The Respondent received the copy of the said last opportunity notice on 21.07.2013 against his proper receipt, however, Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 he did not appear before the Disciplinary Authority on 22.07.2013 at the given time. Moreover, the Respondent also did not send any representation with regard to the findings of the Inquiry Officer before the Disciplinary Authority. 15. It is averred that the Disciplinary Authority, after carefully examining the entire record of the departmental inquiry, including the findings of the Inquiry Officer, observed that all the prosecution witnesses had been examined during the inquiry proceedings in the absence of the Respondent, who had failed to cooperate, and that these witnesses had supported the allegations and charge framed against the Respondent. The Disciplinary Authority further noted that, in adherence to the principles of natural justice, the Respondent had been afforded an opportunity to appear before the Disciplinary Authority on

22.07.2013 along with his reply to the findings of the Inquiry Officer, however, he neither submitted any reply nor appeared, indicating that he had nothing to state in his defence. The Disciplinary Authority also took into consideration the previous record of the Respondent, which revealed that he was a habitual absentee and had earlier been awarded the punishment of forfeiture of five years of approved service permanently on 29.05.2013, yet he failed to mend his conduct. The Disciplinary Authority, concurring with the findings of the Inquiry Officer that the charge against the Respondent stood fully proved, found no reason to disagree with the said findings, and was of the opinion that the Respondent did not deserve any leniency and was unfit for further retention in the Police Force. Accordingly, the Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 Additional Deputy Commissioner of Police, West District, Delhi, dismissed the Respondent from service vide Order dated 24.07.2013. Further, the period of absence of the Respondent, as mentioned in the order of dismissal, was also treated as “Not Spent on Duty” for all intents and purposes, in accordance with the principle of “No Work, No Pay.” It was further ordered that the said period shall not be regularised in any manner whatsoever. 16. The Respondent, thereafter, preferred an appeal against the order of dismissal before the Joint Commissioner of Police, South Western Range, Delhi, who is the Appellate Authority. 17. The Appellate Authority, after considering the appeal, and after granting the Respondent an opportunity of hearing, keeping in view the past service record of the Respondent wherein he had remained absent on 74 different occasions earlier, had been censured on 7 occasions, and had also been awarded major penalties on 3 separate occasions, rejected the appeal vide Order dated 09.09.2015, holding that the Respondent is unfit to serve in a disciplined Force. 18. Aggrieved thereof, the Respondent filed the aforesaid O.A. before the learned Tribunal, seeking quashing and setting aside of the findings dated 18.06.2013 of the Inquiry Officer, the Order of punishment dated 24.07.2013, and the Appellate Authority's Order dated 09.09.2015. In the alternative, the Respondent sought a direction to the Petitioners herein to convert the punishment of dismissal from service into one of compulsory retirement, or grant him compassionate allowance along with all consequential benefits under Rule 41 of the Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 Central Civil Services (Pension) Rules, 1972 (in short, „Pension Rules‟). 19. The learned Tribunal, vide the Impugned Order, allowed the said O.A. and quashed the orders passed by the Disciplinary Authority as well as the Appellate Authority. The matter was remitted to the Disciplinary Authority to revisit the case and pass a fresh order imposing a fresh penalty upon the Respondent, other than the penalty of dismissal from service. The relevant paragraphs of the Impugned Order read as under: “9. We are conscious that it is the sole discretion and prerogative of the disciplinary authority to impose any of the penalties listed in the disciplinary rules and dismissal is one of such penalties. We have no reason therefore to question the wisdom and authority of the disciplinary authority while passing an order with respect to such a penalty. We are also conscious of the fact that our authority is limited only to adjudicate the legality of an action and not to dwell upon the wisdom of the said authority in exercise of its legitimate powers. However, at time, responsibility is cast upon us that while upholding the law, principles of natural justice also must be protected. Moreover, once we hold that the penalty imposed upon him is excessive and certainly not commensurate with the allegation leveled and proven against the applicant and considering that there are facts and precedents when circumstances, this Tribunal has remitted the cases back to the disciplinary authority for re- consideration of the penalty imposed, we have no hesitation in holding that the facts and circumstances of the present case warrant us to interfere in the orders of the disciplinary and appellate authorities by identical Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023 the conscience of taking a similar view. Also, if the punishment is imposed by the disciplinary or the appellate authorities shocks Tribunal, it is incumbent upon us to direct the disciplinary/appellate authorities to consider the penalty imposed. While absenteeism in a disciplined force is a serious matter, it is not the case that the applicant has been found to be involved in a criminal case, and convicted or in matters of financial misappropriation, corruption or moral turpitude. Further, in his appeal, he has mentioned that he was seriously ill during the time of his purported absence and has relevant medical records to the effect which have been ignored by the Respondents while taking the decision of dismissal. We find that the appellate authority while disposing of his appeal has considered the factum of illness of his wife though the contention of the applicant in his appeal about his precarious medical condition has not been considered by the appellate authority. 10. facts and circumstances, we consider it appropriate to set aside the said impugned orders and remit the case back to the disciplinary authority to revisit the matter and pass an order afresh. The consideration, shall take a decision to impose a fresh penalty upon the applicant. However, the said authority would be at liberty to impose any penalty other than the penalty of dismissal from service. The said directions shall be complied with, within a period of eight weeks from the date of receipt of a certified copy of this order. The applicant, if the circumstances so arise, shall be entitled to that may subsequently accrue, in accordance with law.” view of aforesaid consequential disciplinary authority, benefits In (Emphasis supplied) Signature Not Verified Digitally Signed By:REYMON VASHIST Signing Date:20.11.2025 18:40:48 W.P.(C) 14142/2023

20. Aggrieved by the said Order, the Petitioners have preferred the present petition. Submissions by the learned counsel for the Petitioners: 21. The learned counsel for the Petitioners, reiterating the findings of the Inquiry Officer, Disciplinary Authority, and the Appellate Authority, submits that the said orders have been passed by considering the past record of Respondent which reflects that he remained absent on 74 different occasions earlier; was censured on 07 occasions; and was also awarded major penalty on 03 occasions, which shows that he is an incorrigible person who cannot be accepted in a disciplined Force. In support, she places reliance on the Judgment of this Court in Durga Prasad v. Govt, of N.C.T. of Delhi, 2002 SCC OnLine Del 1042. 22. She submits that the learned Tribunal failed to appreciate that absenteeism in a disciplined Force is a serious matter as it cripples the entire administration of police department. She further submits that wilful and unauthorized absence, if taken leniently, will not only encourage others in a disciplined Force to follow suit but it will also destroy the whole fabric of discipline. In support, she places reliance on the Judgments of Supreme Court in Maan Singh v. Union of India & Ors., (2003) 3 SCC 464, Mithilesh Singh v. Union of India &