DELHI ADMINISTRATION Vs. YASIN KHAN

JUDGEMENT

(1.) The petitioners seek to challenge the judgment of the Central AdministrativeTribunal' Principal Bench, New Delhi (for short 'the Tribunal') dated 17/03/1990in 0.A. No. 1514 of 1993 whereby the learned Tribunal has allowed the O.A.,quashed the impugned order of punishment as well as the appellate order anddirected the petitioners herein to reinstate the respondent while directing that therespondent will not be entitled to any wages for the intervening period though he willbe entitled to count the period between the (date of passing of the impugned punishmentorder and the date of reinstatement for all other purposes.

(2.) Brief facts of the case are that the respondent, a Constable in Delhi Police, wasserved with the Memo of Charge under the Delhi Police (Punishment and Appeal)Rules (for short 'the Rules') on 26/06/1991 on the allegation that he hadabsented himself unauthorisedly from 6/12/1990 to 10/05/1991intermittently. An Enquiry Officer was appointed who, after giving the respondent anopportunity and completing all other formalities, submitted a report holding thecharges proved against the respondent. The disciplinary authority accepted thereport of the Enquiry Officer and, also taking into consideration the earlier allegedincidents of unauthorised absence, imposed upon the respondent penalty of dismissalfrom service vide order dated 25/09/1992. The respondent filed anappeal against the order of the disciplinary authority which was dismissed by orderdated 24/03/1993. Aggrieved by both the orders the respondent moved theTribunal by way of an Original Application No. 514 of 1993.

(3.) Before the Tribunal it was the case of the respondent that the initiation ofdepartmental proceedings itself is bad as the Deputy Commissioner of Police wasnot competent to order holding of a departmental inquiry. The second contention, thatthe order of punishment itself treats the absence as "leave without pay" and, therefore,cannot be considered as a "leave without pay" and, therefore, cannot be consideredas a "default". Thirdly, it was contended that the charge of previous acts of remainingabsent were not included in the Memo of Charges and, therefore, could not havebeen taken into consideration for the purposes of awarding penalty. Arguments wereraised before the Tribunal in support of the abovethree contentions. The Tribunal byits order dated 17/03/1999, come to a finding that the Deputy Commissioner inDelhi Police is competent to appoint officials even to the rank of Sub-Inspector and,therefore, was competent to initiate departmental proceedings against the respondent.As regards the contention of the respondent of non-inclusion of previous record in thecharge-sheet, it was held by the Tribunal that a bare reading of the Memo of Chargesshows that previous conduct was not included as one of them. Rule 16(11) of theRules makes it obligatory for the disciplinary authority to specifically include theprevious bad record in the Memo of Charges itself as a definite charge if it is to beconsidered while awarding punishment and adequate opportunity to the delinquentofficial to defend himself against that charge is required to be given. The absence ofa specific charge regarding past conduct cannot be relied upon by the disciplinaryauthority while awarding punishment. As such the order of punishment was bad onthis count. The last contention, namely, that the period of absence having beentreated as "leave without pay" ipso facto set at naught any misconduct, found favourwith the Tribunal which relied upon the judgment of the High Court of Punjab andHaryana in State of Punjab Vs. Charan Sing and, therefore, held that the observationof the punishing authority treating the period of absence to be "leave without pay"amounted to regularising the absence which view was also followed by the DelhiHigh Court in Satya Pal Yadav Vs. Union of India 71 (1998) DLT 68 and further bythe Supreme Court in State of Punjab and Others Vs. Bakshish Singh, JT 1998(7) SC 142 and, consequently, went on to allow the 0.A. with the directions as alreadystated.