Pushpa Devi vs Commissioner Of Police And Ors

Ashish Kalia, J

Through the medium of this Original Application (OA), filed under Section 19 of the Administrative Tribunals Act, 1985 the applicant has prayed for the following main reliefs:

"a) to set aside the impugned dismissal order of Applicant's Husband Ct. Ravinder Kumar passed vide Order No.1806-1905-HAP/IGIA(P-1) Dated 16.03.2011 and direct respondent to grant death-cum retirement benefits to the Applicant with all consequential benefits, who subsequently died on 01.7.2012, due to prolong sickness.

Or

(b) To direct the respondent to convert the punishment of dismissal into that of voluntary retirement, with all consequential benefits, granting equity and also precedent in the Department, as such cases have been considered & relief given to the victims in the past also and most pertinently his services were terminated for absence of 23 days & 10 hrs.

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(c) To direct the respondent to pay stopped salary & other legal dues etc. since Jun 2008, as Applicant's Husband's salary was stopped, without any justification and was also suspended wef 09.12.2009, without any subsistence allowances.

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(d) Alternatively direct the respondent to provide employment to the Applicant or any one of Applicant's children which will meet basic needs of the family and children education.

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(e) to enhance compassionate allowance to the maximum level, sanctioned vide letter dated 20.12.2012, with all consequential benefits as provided in rule 41 of CCS (Pension) Rules and other applicable rules, as these issue were required to be considered while passing the order of punishment of dismissal wef 16.03.2011 but not considered by the disciplinary authority."

Succinctly put, the husband of applicant joined Delhi Police on 07.08.1991 and served at various police stations for about 16 years of unblemished service before his undiagnosed severe illness which has resulted in his untimely death. Applicant's husband submitted a representation on 12.03.2007 to the respondents thereby requesting for undertaking certain tests in private labs. He was forced to work without pay w.e.f. 01.06.2008 as his monthly pay was stopped without any justification which left him without money to take treatment of his disease. It is submitted that this action of the respondents is in violation of Fundamental Rules and against the principles of natural justice and audi alteram partem.

2.1 The husband of applicant was suspended from service by the respondents w.e.f. 08.12.2009, without any subsistence allowance or economical support to meet his basic needs, self and family sickness etc. which violate Section 27 (d) (e) & Section 30 (1) of Delhi Police (Punishment & Appeal) Rules, 1980.

2.2 In the month of July 2009, when husband of applicant approached dispensary to avail medical facilities he was informed that the medical facilities have been withdrawn by the respondents.

2.3 Aggrieved by the grossly inhuman treatment such as stoppage of salary, illegal suspension, stoppage of medical facilities etc. by the respondents the health of applicant's husband deteriorated badly and he became mentally unstable and unfit to render his service but he continued to render his services as per the instructions of the respondents.

2.4 In this backdrop of unstable mental condition and deteriorated bad health of applicant's husband, Departmental Enquiry (DE) was ordered against him on 31.01.2010 despite his severe illness. The DE was conducted ex parte and as the applicant, due to his illness, could not defend himself.

2.5 The applicant's husband was dismissed from service on 16.03.2011 on the charges of unauthorized absence of 23 days and 10 hrs. after holding DE in a very casual manner, without ascertaining factual position of absence of applicant's husband.

2.6 It is submitted that the punishment of dismissal is awarded to applicant's husband keeping in view his past absence period, which was already decided and he was awarded punishments against such absenteeism. Taking into account such past cases, is not only against the principles of natural justice but also against Delhi Police (Punishment & Appeal) Rules, 1980. Therefore, it amounts to double jeopardy if he is punished twice for the same irregularities and in turn it means complete injustice to him.

2.7 It is further submitted that the impugned order is not legally sustainable without applying the provisions of Rule 16 (xi) as extracts of previous bad records had never been served upon applicant's husband keeping in view his mental condition. The applicant's husband was never supplied with copy of proceedings including impugned order during his life time and he was not given any reasonable opportunity or provided with legal assistance to defend himself, as his mental condition was unstable and he was bed ridden. The applicant's husband died on 01.07.2012 due to cardiac arrest.

The applicant approached the respondents to release death-cum-retirement benefits, payment of unpaid salary and stopped payment, suspension allowance etc. But the respondents paid only the compassionate allowance w.e.f. 20.09.2012 vide order dated 20.12.2012. Hence the instant OA.

On the other hand, the respondents have filed their reply and opposed the OA. It is submitted that a DE was initiated against applicant's husband who was under suspension at that time (now expired) vide office order dated 13.01.2010 on the allegations that on 19.10.2009 while posted at lines/IGIA. He was deployed for Sentry Duty from 4.00 PM to 12.00 Night as per duty Chitha, but he did not report for duty. A search was made through Constable Vijay Pay in the area of Lines but he was not found anywhere. Hence he was marked absent vide DD No.20 Lines dated 19.10.2009. He resumed his duty on 22.10.2009 vide DD No.12 Lines, IGIA dated 22.10.2009 after absenting himself for a period of 02 days, 17 hours and 10 minutes wilfully and unauthorizedly.

Thereafter also he continued to remain absent on various occasions which have been listed in the reply. His past record also indicates that he was a habitual absentee. In the past also he had remained absent on 22 occasions and the period of absence was decided by the respective authorities and he was awarded various punishments. The respondents have also given the details of the various punishment and period of absence and the punishment awarded in the past in their reply.

It is submitted that the due procedure has been followed in the DE and he was given full opportunity to defend himself but he chose not to avail the same.

Heard the learned counsel for the parties at length. The short point raised by the applicant herein, who is the widow of ex-Constable Ravinder Kumar, is that the enquiry conducted by the respondents was in defiance of certain provisions of law. It is also submitted by the learned counsel for the applicant that during the currency of suspension applicant's husband was not paid a single rupee as subsistence allowance which is mandatory as per Rule 27 of the Delhi Police (Punishment & Appeal) Rules, 1980. He has also submitted that the Disciplinary Authority (DA) has taken into account extraneous circumstances while deciding the punishment of dismissal from service.

The learned counsel for the applicant has also submitted that such a harsh punishment can only be granted when grave misconduct is committed by the delinquent official. In the present case the applicant's husband has been charge-sheeted for remaining absent for 23 days only. Thus the punishment awarded to the husband of the applicant, since deceased, is harsh.

4.1 He has also cited the judgment of the Hon'ble Apex Court in the matter of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. [(1990) 3 SCC 679] where the Hon'ble Apex Court has laid down that principle that in case subsistence allowance is not paid to the delinquent official the enquiry is vitiated, that too, on the ground of bad health. The relevant observations of the Hon'ble Apex Court in this regard are reproduced below:

"Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. This Court, in O.P. Gupta vs. Union of India & Ors. (1987) 4 SCC 328 made the following observations with regard to Subsistence Allowance :

"An order of suspension of a government servant does not put an end to his service under the government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance -- generally called subsistence allowance -- which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol.II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means -- means of supporting life, especially a minimum livelihood."

(Emphasis supplied) If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death.

On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like Instrumentalities of the Govt. or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court in State of Maharashtra vs. Chanderbhan 1983(3) SCR 337 = 1983 (3) SCC 387 = AIR 1983 SC 803 struck down a Service Rule which provided for payment of a nominal amount of Rupee one as Subsistence Allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki vs. Presiding Officer & Anr. (1986) 3 SCC 131 = 1986(2) SCR 1059 = AIR 1986 SC 1168 and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of Subsistence Allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Dass Shrivastva vs. State of Madhya Pradesh (1973) 1 SCC 656 = AIR 1973 SC 1183.

The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.

Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex-parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated."

4.2 The applicant has also relied upon an order passed by this Tribunal in the matter of Sushila Devi v. Govt. of NCTD & Ors., [OA No.3112/2012, decided on 13.03.2013], where the Tribunal has held:

"12. Again under Rule 8 of the Delhi Police (Punishment & Appeal) Rules, 1980, the punishment of removal or dismissal from service can be awarded only for gross misconduct rendering one unfit for police service. The inquiry officer is expected to say only whether charge leveled against the delinquent was proved or not. While charge proved against him was grave or not was to be left to the disciplinary authority. It is also not the prerogative of the inquiry officer to decide whether the delinquent was fit to police duty or not. The said rule is reproduced as under:-

"8. Principles of inflicting penalties:- (a) Dismissal/Removal. Punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.In our considered view both the disciplinary as well as the appellate authorities did not apply their mind. They have been swayed by the report of the inquiry officer which was beyond his jurisdiction. Further, it is seen that the applicants husband died immediately after his dismissal from service. It also shows that his claim that he was suffering from hepatitis and other diseases was not unfounded.

In view of the above facts and circumstances in this case, we allow this O.A. and quash and set aside the impugned inquiry officers report and the orders of the disciplinary as well as the appellate authorities. As the applicant has, unfortunately, expired on 16.07.2011, he shall deemed to have been re-instated in service w.e.f. 10.03.2011 i.e. the date of his dismissal from service with all consequential benefits. The respondents shall also pass appropriate orders and disburse all the financial benefits arising thereof in accordance with the rules within two months from the date of receipt of a copy of this order. There shall be no order as to costs."

4.3 The learned counsel for the applicant relied on yet another judgment of the Hon'ble Supreme Court in the case of Shri Bhagwan Lal Arya v. Commissioner of Police Delhi & Ors., [(2004) 4 SCC 560]. where the Hon'ble Supreme Court has laid down the following principle of law:

"The order dated 16.01.1995 passed by the respondents was produced by the respondents themselves in their reply to C.W.P. before the High Court of Delhi that they had sanctioned leave without pay for the period from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence. The High Court has failed to appreciate and evaluate this aspect of the matter. The High Court also did not appreciate that after issuing sanction for leave for the period in question, the employee's legitimate expectation would be that no stern action would be taken against him with respect to the alleged act of misconduct which by no stretch of imagination can be considered act of gross misconduct or continued misconduct indicating incorrigibility and complete unfitness for police service. It is not the case of the respondents that the appellant is a habitual absentee. He had to proceed on leave under compulsion because of his grave condition of health and, therefore, the punishment of removal from service is excessive and disproportionate. We are of the view that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service. Merely one incident of absence and that too because of bad health and valid and justified grounds/reasons cannot become basis for awarding such a punishment. We are, therefore, of the opinion that the decision of the disciplinary authority inflicting a penalty of removal from service is ultra vires of Rule 8 (a) and 10 of the Delhi Police (Punishment & Appeals Rules, 1980) and is liable to be set aside. The appellant also does not have any other source of income and will not get any other job at this age and the stigma attached to him on account of the impugned punishment. As a result of not only he but his entire family totally dependant on him will be forced to starve. These are the mitigating circumstances which warrant that the punishment/order of the disciplinary authority is to be set aside."

On the contrary, learned counsel for the respondents has drawn our attention to the fact that the applicant's husband had been subjected to unauthorized absence for more than 22 occasions but the Department has only charged him of 23 days and 10 hrs for the period started from 19.10.2009 to 24.11.2009 and the punishment so awarded by the Appellate Authority is in consonance with the misconduct committed by applicant's husband.

The learned counsel for the respondents has also submitted that the applicant has made a request for grant of compassionate allowance under Rule 41 of the CCS (Pension) Rules, 1972 and the same has also been granted by the competent authority vide its order dated 26.11.2012. She further submitted that the subsistence allowance was paid to the applicant herein on 08.08.2012 vide bill no.276.

Lastly she submitted that the enquiry was conducted in accordance with law.

After hearing both the sides at length, we find that the law laid down by the Hon'ble Apex Court in Capt. M. Paul Anthony and Shri Bhagwan Lal Arya (paras 4.1 & 4.3 supra) covers the case of the applicant's husband who was not paid subsistence allowance as it was admitted by the respondents that subsistence allowance was paid to widow in the year 2012 whereas he was suspended on 08.12.2009 and the Hon'ble Apex Court held that non-payment of subsistence allowance would lead to gradual starvation of charged official himself to death and it amounts to denial of fair opportunity to effectively defend himself, which in turn vitiates the enquiry. No finding of grave misconduct has also been recorded by the authorities either before imposing the punishment of dismissal from service, as mandated under the Delhi Police (Punishment & Appeal) Rules, 1980.

Under the facts and circumstances of the case and legal position rendered by the Hon'ble Apex Court indicated hereinabove, we are of the view that the punishment awarded to the applicant's husband is very harsh and not sustainable in the eyes of law, particularly when he had not been paid subsistence allowance at relevant point of time. Accordingly, the impugned order dated 16.03.2011 is quashed and set aside and we remand back the case to DA. We hereby direct the DA to take a fresh view in the matter and pass a reasoned and speaking order in terms of the law discussed hereinabove. The OA stands disposed of accordingly. There shall be no order as to costs.