Sandeep Kumar Yadav v. GNCT of Delhi & Ors.

12. We are also conscious of our limited jurisdiction of judicial review and the parameters laid down by the Hon‟ble Supreme Court in Union of India and Others vs. P. Gunasekaran; 2015 (2) SCC 610 which reads as follows: “Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an Appellate Authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.”

13. In the facts and circumstances and in view of the parameters laid down by the Hon‟ble Supreme Court, as above, there is nothing to show that there has been any contravention of any procedural rules or principles of natural justice in the instant case. Therefore, the OA is dismissed. No order as to costs.

14. In view of the dismissal of the OA, MA No.1482/2022 filed by the respondents for vacation of interim order dated 25.02.2022 is disposed of accordingly.”

9. Learned counsel for the petitioner assailed the order passed by the Tribunal on the ground that the Tribunal erroneously held that the petitioner had left the station without permission of the competent authority and did not lead any evidence to prove the charge. Further, during the outbreak of COVID-19, as a part of Delhi Police Protocol, the petitioner was entitled to avail a rest period of three days, which was availed with due intimation in terms of DD No. 19-B dated April 18, 2020. Intimation is stated to have been duly forwarded regarding quarantine for 28 days on arrival at his hometown at Alwar, Rajasthan telephonically. Petitioner is further claimed to have been wrongly marked absent vide DD No. 45-B dated April 21, 2020. The showcause notice dated May 01, 2020 served upon the petitioner through WhatsApp is stated to have been duly replied on May 02, 2020 and it was informed that the petitioner was unable to report since he was placed under quarantine for 28 days. The ex-parte order dated May 19, 2020 treating the petitioner absent from April 21, 2020 till joining and the period as ‘not spent on duty’ is vehemently challenged. It is further urged that due to ill health, petitioner was able to resume his duties only on October 14, 2020 and the leave of absence was requested to be treated as commuted leave. It is contended that petitioner was neither informed of being marked absent, nor served with any absentee notice and was not recommended for medical re-examination in terms of standing orders. It is also submitted that the Disciplinary Authority erred by holding the petitioner guilty of leaving the station, though he was not charged for leaving the station without permission. Reliance was further placed upon order dated November 11, 2021 passed by the Tribunal in Sandeep Kumar vs. Commissioner of Police & Another, O.A. No.3679/2014 and Krushnakant B. Parmar vs. Union of India & Anr, (2012) 3 SCC 178.

10. On the other hand, the orders passed by the Disciplinary Authority and Appellate Authority, as upheld by the Tribunal was supported by learned counsel for the respondents. It was submitted that unauthorized absence of the petitioner was self-speaking, since the petitioner did not seek any permission to leave the station on April 18, 2020 and thereafter, unauthorizedly remained absent for a period of 05 months 22 days. It was urged that left with no option, the petitioner was issued a show-cause notice on May 01, 2020, but he still failed to report for duty and subsequently only on joining produced the medical certificates. It is vehemently urged that during the challenging times of COVID-19, while strict instructions were issued to all the police personnel to report for duty, the petitioner abandoned his duties, without intimation and permission, in contravention of the relevant rules and standing orders. Further, the inquiry proceedings are contended to have been duly held in accordance with the rules, wherein the charge against the petitioner stood proved and the misconduct was correctly penalized. The findings of the Inquiry Officer are stated to have been correctly affirmed by the Disciplinary Authority as well as Appellate Authority.

11. We have given considered thought to the contentions raised. In order to appreciate the contentions of the parties, at the outset, the charge framed against the petitioner may be reproduced:- “CHARGE I, Inspr. Ajay Kumar Singh, Inspr. DSF/Chanakya Puri, New Delhi Enquiry Officer charge you Constable (Exe.) Sandeep Kumar Yadav, No.1132/ND (PIS No.29100519) that on 21.04.2020, you while posted at Mandir Marg, New Delhi Distt. Were detailed for duty from 8.00 p.m. Besides, due to the spread of “COVID-19”, it was strictly directed to all the police personnel to report for duty at once and further they were directed not to leave their District Headquarters since adequate arrangements have been made for their accommodation in Delhi. But you did not comply the directions and neither reported for duty nor sent any intimation to the department about your whereabouts. As such you were marked absent vide DD No.45-B, dated 21.04.2020, P.S. Mandir Marg, New Delhi Disst. You Constable (Exe.) Sandeep Kumar Yadav, No.1132/ND resumed your duty vide DD No.64 dated 14.10.2020 after absenting yourself for a period of 05 month, 22 days, 21 hours and 59 minutes unauthorisedly without any intimation /prior permission of the competent authority, which is in contravention of CCS (Leave) Rules, 1972 as well as S.O. No.111 of Delhi Police. The above act on the part of you Constable (Exe.) Sandeep Kumar Yadav, No.1132/ND amounts to gross misconduct, dereliction in the discharge of your official duties and unbecoming of a member of police force, which renders you liable for punishment under the provision of Delhi Police (Punishment and Appeal) Rules, 1980 read with section 21 of D.P. Act, 1978.”

12. It is well settled that the High Court in the cases of departmental inquiry with reference to the findings recorded therein does not act as an Appellate Court. The jurisdiction is limited and is to be exercised only in case the domestic inquiry is vitiated for non-observance of principles of natural justice, denial of reasonable opportunity, findings based on no evidence and/or the punishment is totally disproportionate to the proved misconduct of an employee. The issue in relation to jurisdiction of the case in the judicial review also fell for consideration before the Hon’ble Supreme Court in M.V. Bijlani vs. Union of India and Others, (2006) 5 SCC 88 and the observations in para 25 in this regard are apt to be noticed:-

Union of India (supra) in this regard are relevant, as referred by the learned counsel for the petitioner and may be beneficially reproduced:-

13. In the light of aforesaid legal position, we are of the considered view that the absence from duty without any application or permission may not always amount to unauthorized absence, as the same may not be ‘willful’ and there may be different eventualities due to which an employee may abstain from duty including compelling circumstances beyond his control like illness, accident, hospitalization etc. However, at the same time, the employee is required to show the compelling circumstances to remain absent, in case the period of absence needs to be regularized/condoned. The unauthorized absence as a misconduct cannot be put up in a straightjacket formula and the facts and circumstances of each case need to be duly analysed before treating it as misconduct.

14. Thus, in the present case, it needs to be ascertained in case the petitioner proceeded on leave under compulsion and whether his absence on medical grounds supported with medical certificates stands duly justified. It also needs to be kept in perspective that the present case arises under special circumstances due to onset of COVID-19 pandemic during the initial phase in the year 2020.

15. The contention of the petitioner is that he had left for his hometown on April 18, 2020 since he had been provided special COVID-19 rest for the period April 18, 2020 to April 20, 2020 (3 days) and on reaching the hometown, he was quarantined for a period of 28 days on April 19, 2020, resulting in a situation that he could not report for duty. It was claimed by him that he had informed the same to the Duty Officer and Chitta Munshi while proceeding, though PW[3] stated that he was informed of the same on April 19, 2020. It is important to keep the aforesaid factual position in perspective since the COVID-19 rest granted to the petitioner from April 18, 2020 to April 20, 2020 was authorized. The evidence that the instructions ‘not to leave the station’ were to the notice of petitioner, has not categorically been proved on record. The officials living in nearby/NCR areas generally leave for hometown during authorized leave/period of rest. It may also be noticed that due to prevalence of COVID-19, extraordinary curbs had to be placed along with complete lockdown in several parts of the country resulting in quarantine measures and restricted movement in several areas to prevent spread of the disease. In the aforesaid background, the unexpected placing of petitioner in quarantine for a period of 28 days after he proceeded for his hometown at Alwar, Rajasthan during valid period of rest for three days, was beyond his control due to which he could not report for duty on April 21,

2020. The same was duly intimated as admitted by PW[3] HC Sarvan in the inquiry proceedings on April 19, 2020. Reply to the show-cause notice dated May 01, 2020 was also forwarded by the petitioner on WhatsApp and the same also stands admitted in the inquiry proceedings by PW[3]. In the facts and circumstances, adverse inference cannot be drawn against the petitioner for initial non-reporting for duty on April 21, 2020, since he was placed in quarantine w.e.f. April 19, 2020 for a period of four weeks at his hometown at Alwar. The show-cause notice, as such, should have been logically discharged as the absence was beyond the control of the petitioner due to extraordinary situation and compelling circumstances prevalent due to COVID-19 pandemic.

16. The petitioner, for the subsequent period of absence, has claimed that he was advised medical rest w.e.f. May 17, 2020 by Dr. Devendra Dev, Senior Medical Officer, Trauma Centre, Behror, Rajasthan, which was duly informed to the Duty Officer as well as Chitta Munshi. However, only at the time of resuming the duties, he became aware that the information had not been recorded in the Daily Diary by the Duty Officer as well as by the Chitta Munshi. The petitioner has further relied on the medical prescriptions from May 17, 2020 to October 13, 2020 in this regard.

17. The stand of the petitioner in the inquiry proceedings in this regard did not find favour with the Inquiry Officer as well as Disciplinary Authority. We are of the considered view that there is always a possibility that a person may have unexpected medical problems but from the departmental perspective he is expected to convey the period for which he has been advised medical rest and is likely to remain absent. It is not the case of the petitioner that he had been prescribed a long medical rest for about five months in one go, on account of ‘LBP’ (Lower Back Pain). The medical prescriptions have been obtained by the petitioner from time to time and, as such, he was expected to convey the extension of medical rest, as advised, and seek leave from the department. However, the petitioner chose to remain unauthorizedly absent without any further communication in this regard, at his own sweet will. There was no occasion for the department to seek any medical re-examination of the petitioner as they were completely unaware and ignorant of the reasons for the absence of the petitioner, after initial quarantine for four weeks. The finding of the Disciplinary Authority for the unauthorized absence of the petitioner, only for the period as discussed above, is legally sustainable.

18. In the facts and circumstances, since it has been held that the initial period w.e.f. April 19, 2020 for a period of four weeks, for which the petitioner was in quarantine, cannot be treated as unauthorized, the penalty needs to be considered afresh. In Coal India Ltd. and Anr. vs. Mukul Kumar Choudhuri and Ors., (2009) 15 SCC 620, Hon’ble Apex Court analysed the doctrine of proportionality of penalty and in para 19 to 21 held that one of the tests while dealing with question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration measure, magnitude and degree of misconduct and all other circumstances after excluding irrelevant matters, before imposing punishment. Observations in para 19 to 21 in this regard may be beneficially reproduced:-

19. In the present case, the doctrine of proportionality, in the context of imposition of punishment is attracted, since a fear psychosis on mass scale was generated due to COVID-19 pandemic, without any standard regimen of treatment and also wide scale restrictions on movement were imposed with compulsory quarantine measures. The petitioner could not initially attend the office w.e.f. April 21, 2020 after being granted official special rest from April 18, 2020 to April 20, 2020, since he was placed in compulsory quarantine w.e.f. April 19, 2020 for a period of four weeks on reaching his hometown at Alwar, Rajasthan. Also, the absence of the petitioner on medical grounds requires a considerate view, since the medical prescriptions have not been challenged. The penalty of forfeiture of one year approved service by the Disciplinary Authority in the facts and circumstances is disproportionate, since it is not a case of repeated absenteeism by the petitioner. In view of above, the penalty imposed upon the petitioner by the Disciplinary Authority and upheld by the Appellate Authority as well as the order passed by the Tribunal, is liable to be set aside. The facts and circumstances in Harender Singh vs. GNCT of Delhi and Ors., W.P.(C) 3238/2017, relied by the learned counsel for the respondents are distinguishable, since the petitioner in the said case failed to join/report for duty even though a notice was served calling upon him to join the duties and despite the same remained absent for the period October 24, 2006 to October 01, 2008 i.e. for a period of about little less than two years. Further, there were no special circumstances of COVID-19 pandemic as adverted to in the present case.

20. For the foregoing reasons, the matter is remanded back to the Disciplinary Authority to pass fresh orders with regard to the punishment imposed on the petitioner, keeping in perspective that the petitioner initially remained under quarantine due to COVID-19 pandemic and, thereafter, the absence was on medical grounds, duly supported by prescriptions. The Disciplinary Authority is expected to take a reasonable and sympathetic view, in the facts and circumstances of the present case. The petition is accordingly disposed of. In the facts and circumstances, no order as to costs. Pending applications, if any, also stand disposed of.

(ANOOP KUMAR MENDIRATTA) JUDGE (V. KAMESWAR RAO) JUDGE August 17, 2023/R/sd