Holding

Absence on medically sanctioned leave cannot be treated as grave misconduct, and the removal from service was ultra vires and disproportionate.

Summary

The appellant, a constable in the Delhi Police, fell ill during training and, on medical advice, went to his hometown for treatment, submitting leave applications supported by medical certificates. The competent authority later sanctioned leave without pay for the period of his illness, but the police department issued a termination notice and subsequently initiated a disciplinary enquiry, ultimately imposing removal from service for alleged unauthorized absence. The appellant challenged the punishment before the CAT, the Delhi High Court, and finally the Supreme Court, arguing that absence on medical grounds could not constitute grave misconduct under Rules 8(a) and 10 of the Delhi Police (Punishment & Appeal) Rules, 1980. The Supreme Court held that the Rules permit removal only for grave or continued misconduct indicating incorrigibility, which was not present in this case, and that the penalty was excessive, disproportionate and ultra vires. Consequently, the Court set aside the removal order, reinstated the appellant subject to conditions, and ordered that the period of sanctioned leave not be counted as service time.

Issues considered

Whether removal from service for an employee's absence on medical grounds, with leave sanctioned under the Delhi Police (Punishment & Appeal) Rules, 1980, constitutes grave misconduct punishable under Rules 8(a) and 10.
Whether the penalty of removal from service is grossly disproportionate and therefore ultra vires the statutory provisions.

Subjects

disciplinary actionremoval from servicemedical leaveproportionalityDelhi Police Rulesgrave misconductadministrative lawservice reinstatement

Judgment

SHRI BHAGWAN LAL ARYA A
V,

COMMISSIONER OF POLICE, DELHI AND ORS_

MARCH 16, 2004

[R,C LAHOTI AND DR, AR_ LAKSHMANAN, JJ,] B

Delhi Police (Punishment & Appeal) Rules, 1980-Rules 8(a) & 10-
-~
Absence from duty by employee on medical grounds-Competent authority
sanctioning leave application-Initiation of disciplinary enquiry for wilful C
absence from service-Enquiry officer holding against the employee-
Termination of service of employee-Held, absencefi'om duty be employee on
medical grounds cannot be termed a misconduct under the Rules-Punishment
is excessive and disproportionate-Hence set aside,

Appellant was recruited as a Constable in Delhi Police. While D
undergoing training, the appellant fell down and became ill. Since his
condition did not improve, the appellant went to his hometown for medical
treatment and sent leave applications from there on medical grounds.
I
During the period of leave, the respondents issued a notice of termination
of service to the appellant. The appellant joined service after submitting
a fitness certificate. The services of the appellant were terminated by the E
respondents. The competent authority, thereafter, sanctioned leave without
pay for the period of around 2 months and 8 days after the receipt of the
termination order by the appellant. The appellant ma~e representation to
the respondents for reinstatement in service. The first respondent
reinstated the appellant in service. However, the appellant again fell i!l F
and was on leave for several days on medical grounds and was granted
leave by the respondents.

A disciplinary enquiry was initiated against the appellant under Delhi
Police (Punishment & Appeal) Rules, 1980. After serving a chargesheet
on the appellant, the enquiry officer in his enquiry report held that the G
acts of the appellant were highly reprehensible and untenable and,
therefore, the charge against him stood fully proved. The disciplinary
authority imp?sed the penalty of removal from service on the appellant.
- .J The appeal by the appellant before the second respondent was rejected.
Fresh revision and mercy petitions filed by the appellant were also rejected. H
I
2 SUPREME COURT REPORTS [2004] 3 S.C.R.

A The Central Administrative Tribunal dismissed the appeal of the appellant.
The Writ petition of the appellant was dismissed by the High Court.

The appellant contended that the punishment of removal from
service awarded was totally unjust, unfair, inequitable and arbitrary; that
he did not absented himself from duty willingly; that he absented himself
B from duty due to long illness which is supported by leave applications and
medical certiffcates and fitness certificates from competent medical
authority of Government Department; that the absence on medical
grounds is not a grave misconduct under Delhi Police (Punishment & ....
Appeal) Rules, 1980; and that the decision of competent authorities to
C remove the appellant from service is against the spirit of Rules 8 and 10
of Delhi Police (Punishment & Appeal) Rules, 1980.

The respondents contended that the appellant had absented himself
unauthorisedly and wilfully and left to his home town without the
permission of the competent authority; and that the disciplinary enquiry
D initiated against him was proper and the punishment awarded were just
and proper.

Allowing the appeal, the Court

HELD: 1.1. Rules 8 and 10 of the Delhi Police (Punishment &
E Appeal Rules, 1980) provide that the penalty of removal can be imposed
only in cases if grave misconduct and continued misconduct indicating
incorrigibility 11nd complete unfitness for police service. The absence of
the appellant on medical grounds with application for leave as well as
sanction of leave can under no circumstances be termed as grave
misconduct or continued misconduct rendering him unfit for police service.
F (6-G-H; 7-A; 7-H; 8-AJ

1.2. The High Court failed to appreciate and evaluate the order
passed by the respondents sanctioning leave without pay for the period
from 7.10.1994 to 15.12.1994, the period of alleged unauthorised absence.
G 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
H of the respondents that the appellant is a habitual absentee. He had to
B.L. ARY Av_ COM MR. OF POLICE 3
proceed on leave under compulsion because of his grave condition of health A
and, therefore, the punishment of removal from service is excessive and
disproportionate. [8-8-Ci

1.3. 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 B
police service. Merely one incident of absence and that too because of bad
health and valid and justified grounds/reasons cannot become the basis
for awarding such a punishment. Hence the decision of the disciplinary
-+
authority inflicting a penalty of removal from service is ultra vires of Rules
8 (a) and 10 of the Delhi Police (Punishment & Appeals Rules, 1980). The C
appellant also doe~ 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. Not only he but also his entire family totally
dependant on him will be forced to starve as a result. These are the
mitigating circumstances which warrant that the punishment/order of the
disciplinary authority is to be set aside. [8-D-F] D
1.4. The disciplinary authority, without caring to examine the
medical aspect of the absence, awarded to him the pun_ishment of removal
from service since their earlier order of termination of appellant's service
under Temporary Service Rules did not materialise. No reasonable E
disciplinary authority would term absence on medical grounds with proper
medical certificates from Government Doctors as grave misconduct in
terms of Delhi Police (Punishment & Appeal Rules, 1980). The very fact
that respondents have asked the appellant for re-medical clearly establishes
that they had received applicant's application with medical certificate. This
can never be termed as wilful absence without any information to F
competent authority and can never be termed as grave misconduct.
[8-G-H; 9-A]

2. The punishment of removal from service imposed on the appellant
is not only highly excessive and disproportionate but is also one which is G
not permissible to be imposed as per the Service Rules. The punishment
of removal from service is set aside and the respondents are directed to
reinstate the appellant in service subject to the condition that the period
_} ·during which the appellant remained absent from duty and the period
calculated upto the date on which the appellant reports back to duty
pursuant to this judgment, shall not be counted as a period spent on duty. H
4 SUPREME COURT REPORTS [2004] 3 S.C.R.

A The' appellant shall not be entitled to any service benefits for this period,
and he must report on duty within a period of six weeks from today to
take benefit of the judgment. [9-F-H; 10-8)

B. C. Chaturvedi v. Union of India, AIR (1996) SC 484, referred to.

B CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1625 of
2004.

From the Judgment and Order dated 16.3 .2002. of the Delhi High Court
in C.W.P. No. 6261 of 1998. -1'

C Harbans Lal Bajaj and Gyan Prakash for the Appellant.

Ashok Bhan, R.K. Rathore, Satbir Pillania, K.S. Bhati, Ms. Aishwarya
Bhati, Rupesh Rajan, Ms. Anil Katiyar and D.S. Mahra for the Respondents.

The Judgment of the Court was delivered by
D
DR. AR. LAKSHMANAN, J. Leave granted.

The above appeal was filed against the final judgment/order dated
16.3.2002 passed by the High Court of Delhi in C.W.P No. 6261 of 1998.
The main issue relates to the :illeged unauthorised absence for 2 months and
E 8 days for which penalty of removal from service was imposed by the
respondents on the appellant.

The appellant was recru\ted as a Constable in Delhi Police. While
undergoing the prescribed training, the appellant fell down on the parade
F ground on 07.10.1994. Thereupon, he was sent to police dispensary as ordered
by the Chief Drill Inspector of the parade. Since his condition did not improve,
his relative took him to his home town in Gwalior. He remained under
treatment of Government Doctors there and sent applications for leave on
medical grounds supported with the medical certificates from competent
medical authorities in accordance with the leave rules. The competent police
G authority passed an order on 16.1.1995 sanctioning leave without pay for the
period of his illness from 7.10.1994 to 14.12.1994 as no other leave was due
to him. According to the appellant since the competent authority had granted
the leave, the question of issuing any charge sheet subsequently for
unauthorised absence for the same period would not arise. On 15.11.1994,
H notice of termination from service was issued stating that his services shall
1

B.L. ARY Av. COM MR. OF POLICE [LAKSHMANAN. J.] 5

..,.. stand terminated with effect from the date of expiry of a period of one month A
from the date notice is received by the appellant. The appellant resumed duty
on I 5.12.1994 after submitting fitness certificate from government dispensary,
Gwalior, where he had taken treatment. The services of the appellant were
terminated with effect from 31.12.1994 under Rule 5 of clause (1) of the
Temporary Service Rules. On 16.1.1995, the competent authority sanctioned B
leave without pay for his illness from 7.10.199~ to 14.12.1994 after the
receipt of the termination order. The appellant made representation for
reinstatement. After a gap of more than 4 months, the Commissioner of
·+ Police reinstated him in service forthwith with the provision that intervening
period from 1.1.1995 till he was reinstated will be decided at the time of
finalisation of his disciplinary enquiry. The appellant retained service after C
reinstatement order dated 25.5.1995. However, he again fell ill and was on
leave for several days on medical grounds and was granted leave by the
respondents. On 24.07.1995, disciplinary enquiry was initiated against the
appellant under Delhi Police (Punishment & Appeal Rules, 1980). The
disciplinary enquiry officer served a charge sheet dated 24.02.1996 on the D
appellant. The enquiry officer submitted his findings on 22.04.1996. The
enquiry officer concluded that acts of the appellant are highly reprehensible
and untenable and, therefore, the charge against him stands fully proved. On
25.06.1996, the disciplinary authority imposed the penalty of removal from
service on the appellant. The appellant submitted his appeal on 05.07.1996
which was rejected by the 2nd respondent herein. The appellant submitted a E
fresh revision and the mercy petition which were rejected on 02.06.1997 and
27 .06.1998 respectively. The appellant approached the Central Administrative
Tribunal, New Delhi which also dismissed the 0.A. No. 1195 of 1998.
Th·ereupon the appellant filed the writ-petition in the High Court which was
also dismissed. Being aggrieved, the appellant preferred this Special Leave F
Petition/Appeal.

The learned counsel for the appellant Mr. Harbans Lal Bajaj submitted
that the appellant never committed any misconduct as alleged in the charge
sheet and did not absent himself from duty willingly or deliberately or acts
of negligence and, therefore, the disciplinary authorities were wrong in holding G
the appellant guilty. He further submitted that it is a case of absence from
duty due to appellant's long illness supported by application for leave along
with medical certificate by competent medical authority of government
.) department followed by fitness certificate which was countersigned by the
CMO, Gwalior. It is further contended that no reasonable disciplinary authority H
6 SUPREME COURT REPORTS [2004] 3 S.CR.
--
A would term absence on medical grounds with proper medical certificate from
Government Doctors as grave misconduct in terms of Delhi Police (Punishment
& Appeal Rules, 1980).

It is further submitted that the decision of competent authorities to
remove the appellant from service is against the spirit of Rules 8 and 10 of
B Delhi Police (Punishment & Appeal Rules, 1980). It is also contended that
the punishment of removal from service awarded was totally unjust, unfair,
inequitable and arbitrary.

Per contra, Mr. Ashok Bhan, learned counsel for the respondents
C submitted that the appellant had absented himself for a period of 2 months,
7 days and 17 hours unauthorisedly and wilfully without any information/
permission of the competent authority and left the station without any
permission of the competent authority. The disciplinary enquiry initiated
against him was proper and the punishment awarded is just and proper. It is
contended that since the disciplinary authority, appellant authority, revisional
D authority and the Central Administrative Tribunal, New Delhi and the High
Court rejected the representation/appeal, th is Court shall not interfere with
the orders passed by the authorities and court.

We have perused the pleadings and the orders passed by all the
E authorities including the High Court and the medical certificate and the fitness
certificate issued by the medical officer of the government department of
Gwalior, M.P. On the above pleadings, the following questions of law arise
for consideration :-

(a) Whether the punishment of removal from service is grossly
disproportionate to the alleged acts of misconduct can be awarded
F
to an employee of the police organisation as government
departments/organisations are supposed to be model employees?
(b) Whether the major penalty of removal from service inflicted on
the appellant is grossly disproportionate to the misconduct alleged
against him and, therefore, is totally unjust, unfair and inequitable
G
as contended?
(c) Whether the punishment imposed is in breach of the relevant
Rules 8 and 10 of the Delhi Police (Punishment and Appeal
Rules, 1980) which provide that the penalty aforementioned can
be imposed only in cases of grave misconduct and continued
H
B.L. ARYA v. COMMR. OF POLICE [LAKSHMANAN. J.] 7

misconduct indicating incorrigibility and complete unfitness for A
police servants?

We have perused the relevant orders passed by the disciplinary
authorities, the Central Administrative Tribunal and of ~he High Court. It is
seen from the records that the domestic enquiry has been conducted properly
and the principles of natural justice has been strictly followed. There is no B
denial of reasonable opportunity. We, therefore, hold that the findings are
based on evidence and is not liable to be interfered with. We also hold that
disciplinary action initiated against the appellant is in accordance with the
rules and regulations and not vitiated by any ma/a fides. However, we find
that there is merit and substance in regard to the next contention i.e. punishment C
is totally disproportionate to the proved misconduct of the appellant. It is
contended that the punishment order passed is against the statutory provisions
of Rules 8 and 10 of the Delhi Police (Punishment & Appeal, Rules I 980).

Rule 8 (a) and I 0 of the Delhi Police (Punishment & Appeal, Rules
~ds as under: D
"Rule 8. Principles fur .inflicting penalties (I) Dismissal/Removal the
7
( punishment of dismissal or remova1 1rom service shall be awarded for the act
of grave .misconduct rendering him unfit for polic~·Stll'\o'..ice.

xxxx xxxx xxxx E
"Rule I 0. Maintenance of discipline The previous record of an officer,
against whom charges have been proved, if shows continued
misconduct indicating incorrigibility and complete unfitness for police
service, the punishment awarded shall ordinarily be dismissal from F
service. When complete unfitness for police service is not established,
but unfitness for a particular rank is proved, the punishment shall
normally be reduction in rank."

xxx xxxx xxxx

In the instant case, the appellant had absented himself for 2 months, 8 G
days and 17 hours on medical grounds. The above two rules provide that
penalty of removal can be imposed only in cases, if grave misconduct and
continued misconduct indicating incorrigibility and complete unfitness for
_J police service. The absence of the appellant on medical grounds with
application for leave as well as sanction of leave can under no circumstances, H ·
'

8 SUPREME COURT REPORTS [2004] 3 S.C.R.

A ·in our opinion, be tenned as grave misconduct or continued ·misconduct
rendering him unfit for police service.

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
B 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
C 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 i)abitual 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-ex_cessive and disproportionate. We
D 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 I
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
E 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
F 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.

The disciplinary authority without caring to examine the medical aspect
of the absence awarded to him the punishment of removal from service since I
G their earlier order of termination of appellant's service under Temporary 'J-
Service Rules did not materialise. No reasonable disciplinary authority would
term absence on medical grounds with proper medical certificates from
government Doctors as grave misconduct in tenns of Delhi Police (Punishment '>.. .•
& Appeal Rules, 1980). Non-application of mind by quasi-judicial authorities
H
'"'{
I
B.L. ARY Av. COMMR. OF POLICE [LAKSllMANAN, .I.] 9

can be seen in this case. The very fact that respondents have asked the A
'r appellant for re-medical clearly establishes that they had received applicant's
application with medical certificate. This can never be termed as wilful absence
without any information to competent authority and can never be termed as
grave misconduct.

In B.C. Chaturvedi v. Union of India, AIR ( 1996) SC 484 , (three B
Judges Bench) ] the question posed for consideration was as to whether the
High Court/Tribunal can direct the authorities to reconsider punishment with
cogent reasons in support thereof or reconsider themselves to shorten the
litigation. In this case, at para 18, this Court has observed as under:-

" A review of the above legal position would establish that the C
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the evidence
with a view to maintain discipline. They are invested with the
discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High Court/Tribunal, D
while exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some other
penalty. If the punishment imposed by the disciplinary authority or
the appellate authority shocks the conscience of the High Court/
Tribunal, it would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or E
to shorten the litigation, it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent reasons in support
thereof."

Thus, the present one is a case wherein we are satisfied that the
punishment of removal from service imposed on the appellant is not only F
highly excessive and disproportionate but is also one which was not permissible
to be imposed as per the Service Rules. Ordinarily we would have set aside
the punishment and sent the matter back to the disciplinary authority for
passing the order of punishment afresh in accordance with law and consistently
with the principles laid down in the judgment. However, that would further G
lengthen the life of litigation. In view of the time already lost, we deem it
proper to set aside the punishment of removal from service and instead direct
the appellant to be reinstated in service subject to the condition that the
period during which the appellant remained absent from duty and the period
calculated upto the date on which the appellant reports back to duty pursuant
H
y
\
10 SUPREME COURT REPORTS [2004] 3 S.C.R.

A to this judgment shall not be counted as a period spend on duty. The appellant
shall not be entitled to any service benefits for this period. Looking at the r
.nature of partial relief allowed hereby to the appel !ant, it"ls now not necessary
to pass any order of punishment in the departmental proceedings in lieu of
the punishment of removal from service which has been· set as~le. The
B appellant must report on duty within a period of six weeks from today to take
benefit of this judgment

The appeal is allowed in the tenns abovesaid. No costs.

B.S. Appeal allowed. +

>..