Ex Constable Naresh Kumar vs Commissioner of Police and Others

Sanjiv Khanna, J.—By order dated 26th November, 2000, the Central Administrative Tribunal, Principal Bench, New Delhi (for short, "the tribunal") has dismissed the original application O.A. No. 828/1999 filed by the Petitioner against the order of dismissal from service. The tribunal recorded the contention raised by the Petitioner that there was violation of Rule 14 (4) of Delhi Police (Punishment & Appeal) Rules, 1980 and held that the contention had no merit. In paragraph 8 of the abovementioned order, it was specifically recorded that no legal or factual issue was raised by the counsel, who had appeared for the Petitioner.

The Petitioner filed W.P.(C) No. 4633/2001, which was disposed of on 21st September, 2006. In the writ petition a number of additional grounds were raised. The writ Court did not examine the said additional grounds after recording that learned Counsel for the Petitioner had raised certain factual issues which had bearing on his justifying his absence, but these were not raised and questioned before the tribunal. The writ Court referred to the aforesaid observations of the tribunal that no other ground other than contravention of Rule 14(4) had been raised. The writ court, accordingly, held that the Petitioner cannot be permitted to assail the findings with regard to assertion that he had applied for medical leave and there was non-consideration of medical certificates. Confronted with this situation, learned Counsel for the Petitioner had submitted that he would approach the tribunal and urge the factual issues. The writ Court, accordingly, observed as under:

...It would be entirely for the Petitioner to raise such a ground to apply for review and for the Tribunal to deal with them in accordance with law. The petition is accordingly dismissed as withdrawn with liberty as prayed for.

Thereafter, the Petitioner filed a review application R.A. No. 197/2006 and a Miscellaneous Application No. 2276/2006, which have been dismissed by the impugned order dated 3rd March, 2011.

The power of review is limited and is not an appellate power. The tribunal has examined its earlier order dated 27th November, 2000 and thereafter rightly held that the grounds and contentions raised by the Petitioner were beyond the scope and ambit of power of review, which has been conferred by the statute on the tribunal. It may be also noted that the Petitioner did not initially file an application for review before the tribunal immediately after the order dated 27th November, 2000 was passed, but had preferred a writ petition in the High Court in April, 2001.

Learned Counsel for the Petitioner tried to take us into the merits of his pleas and has referred to the medical certificates filed by him. Prima facie, the alleged medical certificates do not inspire confidence as they are by the same doctor and the Petitioner has not enclosed any diagnostic report. We have perused the order of dismissal. The Petitioner was appointed as a Constable in Delhi Police in November, 1990. He remained absent on six occasions during the period 9th December, 1993 to 5th September, 1994 as per the details given below:

SI. No.

D.D. No. & date of absence

D.D. No. & date of arrival

Period of Day

Absence Hours Minutes

1.

DD No. 27 dt. 9.12.93

DD No. 59 dt. 17.12.93

08

07 15

2.

DD No. 68 dt. 5.3.94

DD No. 71 dt. 15.3.94

10

04 15

3.

DD No. 31 dt. 3.4.94

DD No. 68 dt. 8.6.94

67

05 05

4.

DD No. 75 dt. 16.6.94

DD No. 37 dt. 23.6.94

06

21 20

5.

DD No. 70 dt. 24.6.1994

DD No. 40 dt. 4.7.94

10

02 05

6.

DD No. 78 dt. 5.7.94

DD No. 52 dt. 6.9.94

63

03 40

Previously also the Petitioner had remained absent on four occasions. The defense taken by the Petitioner during the disciplinary proceedings was that due to personal problems like ailing wife and parents and death of his father, he had remained absent from duty. For some period the Petitioner had taken the plea that he was ill and under treatment in the government dispensary at Najafgarh. The Petitioner was not able to substantiate the pleas in the departmental proceedings and accordingly order or dismissal was passed and the said was upheld by the appellate authority as well as the revisionary authority. The difference in pleas/excuses is palpable and apparent. The Petitioner was appointed in a disciplined force and should not have remained repeatedly absent from duty. However, the costs of Rs. 20,000/- imposed by the tribunal are made easy.

In view of the aforesaid, we do not find any merit in the present writ petition and the same is accordingly dismissed except to the extent that the costs imposed have been waived.