MAAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant in this appeal was serving as a Constable in Delhi Police. A departmental enquiry was initiated against the appellant by an order made on 11-11-1991 under Section 21 of the Delhi Police Act, 1978. The allegation against him is that while he was posted at Police Station Chanakya Puri, New Delhi he proceeded to avail medical rest for three days on 31-1-1990; that he was to report back on 2-2-1990 when he again extended his leave till 9-2-1990; that again he further sought seven days medical leave; that he was due to report back on duty on 16-2-1990, but he did not resume his duty nor sent any information nor submitted application for further medical leave and thus he was marked absent; that thereafter, a notice was sent to his native place through the Superintendent of Police, Ghaziabad, U. P. to the effect that he remained absent from duty; that though he received that notice on 23-4-1990, he did not respond to the same nor did he sent any information nor resumed duty; that in these circumstances, a departmental enquiry was initiated; that an Inspector was authorised to conduct the enquiry and he got served the copies of the summary of allegations, list of witnesses with the gist of evidence and documents at his residence; that Enquiry Officer tried his best to secure the presence of the appellant to participate in the proceedings but in vain; that after obtaining orders from the competent authority to conduct the proceedings of the departmental enquiry ex parte, he proceeded further; that the Enquiry Officer completed the enquiry proceedings and submitted his findings with the conclusion that the charge of unauthorised and wilful absence from duty was established; that a copy of the findings of the Enquiry Officer was sent to the residence of the appellant with the directions to represent his case against the findings of the Enquiry Officer within a period of 15 days from 5-1-1992 and he submitted his response on 10-2-1992; that he was informed that if he wishes to be heard in person, he may do so on 28-2-1992; that though he received the said communication on 26-2-1992, he did not appear before the disciplinary authority before passing of final order in the departmental enquiry. It was noticed that he remained unauthorisedly absent from duty for more than 2 years continuously without any intimation to the department or submissions of any medical papers in support of his illness. The disciplinary authority held that absence of the appellant from duty was unauthorised and wilful and these facts were fully established in the enquiry; that he had absented himself unauthorisedly on 21 different occasions from the date of his enlistment in the department on 10-7-1978; that in spite of several punishments for lapse of absence on the said 21 occasions, he did not improve himself; that this indicated that he was a habitual absentee and did not take any lesson from the previous punishments awarded to him. Bearing these facts in mind, the disciplinary authority dismissed the appellant from service by an order made on 13-3-1992. The appellant filed an appeal against the said order of dismissal to the Additional Commissioner of Police, New Delhi range but the same was rejected by an order made on 18-9-1992. Thereafter, the appellant filed an Original Application No. 99/93 on the file of the Central Administrative Tribunal (hereinafter referred to as the Tribunal), which also stood, dismissed. The appellant thereafter filed a writ petition in the High Court challenging the order of the Tribunal dismissing his application. The High Court having dismissed the said writ petition, the appellant has come up in this appeal by special leave.

(2.) Firstly, it was urged before the Tribunal that the appellant had been appointed by the Commandant of Police who is equivalent in rank to Deputy Commissioner of Police, whereas the impugned order of dismissal had been passed by an Additional Deputy Commissioner of Police and, therefore, the said order was not passed by a competent authority. This contention was rejected by the Tribunal by holding that the Additional Commissioner of Police is not subordinate to Deputy Commissioner of Police and that they are equivalent in rank and there is division of work among the two and, as such, the Additional Deputy Commissioner of Police was not subordinate to the Deputy Commissioner of Police. The second ground urged before the Tribunal was that the period of absence having been treated as leave without pay could not be treated as a ground for dismissal. After noticing various periods for which the appellant was absent, the disciplinary authority held as follows :-

(3.) In the writ petition filed against the order of the Tribunal, in the High Court the only ground urged was that the present case is covered by the decision of this Court State of Punjab and ors. vs. Bakshish Singh, (1998) 8 SCC 222, wherein this court held that the period of absence having been regularised as leave without pay would automatically set at naught the order of dismissal. It was also contended that the decision of this court in State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274, is deemed to have been overruled. The High court carefully examined this contention and took the view that the decision in Harihar Gopals case is by a larger Bench and this decision had not been brought the notice of this court in Bakshish Singhs case and the view taken by the Tribunal being in conformity with the view expressed by this Court Harihar Gopals case upheld the order of the Tribunal and dismissed the writ petition.