Unauthorized absence without evidence of willfulness cannot justify severe penalties like dismissal, reflecting a lack of proportionality in disciplinary actions.

ORDER

Hon’ble Mr. B. Anand, Member (A):-

1. In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985 , the applicant has sought the following relief(s):

“(a) Quash and set aside the impugned orders dated 23.04.2019 and 25.01.2019 (Annexure A/1) and (Annexure A/2) respectively along with the impugned enquiry report (Annexure A/3).

(b) Direct the respondents to reinstate the applicant forthwith and

(c) Accord all consequential benefits.

(d) In the event it is found that the applicant is not entitled to the reliefs prayed above, the respondents be directed to consider and grant compassionate allowance to the applicant in terms of Rule 41 CCS (Pension) Rules and as per the law laid down by Hon'ble Supreme Court in Mahinder Dutt Sharma's case, mentioned above

(e) Award costs of the proceedings in favour of the applicant (f) Any other relief which this Hon'ble Tribunal deems fit and proper in favour of the applicant”

2. The factual matrix of this case, as gleaned from the available record and able assistance of the counsels, is that the applicant, while being posted in Police Station (PS) Mansarovar Park, was due to resume his duty on 15.02.2016, but he neither resumed his duty nor sent any intimation to the respondents, for which he was marked absent w.e.f. 15.02.2016. The applicant finally resumed his duty on 04.11.2018 at P.S. Mansarovar Park, Shahdara District, after unauthorizedly absenting himself for a period of 993 days. The respondents initiated disciplinary proceedings against the applicant. The Enquiry Officer prepared and served the summary of allegations, the list of witnesses, the list of documents and the memo to be relied upon and the same were served upon the applicant on 04.11.2016. After due inquiry process, the Enquiry Officer submitted his findings to the disciplinary authority on 10.09.2018 with the conclusion that the charge against the applicant stands proved beyond reasonable doubt. Tentatively agreeing with the Enquiry Officer, the findings were served upon the applicant vide order dated 11.09.2018 with the direction to submit his representation, if any, against the findings of the Enquiry Officer to the Disciplinary Authority within 15 days from the date of receipt, failing which it will be presumed that he has nothing to say in his defence and the matter will be decided ex parte on its merits. Thereafter, the applicant submitted his representation on 05.11.2018. The disciplinary authority perused the representation submitted by the applicant as well as the finding of the Enquiry Officer report and vide their order dated 25.01.2019, imposed an order of ‘Dismissal’ from service against the applicant. The applicant filed an appeal dated 01.02.2019 to the appellate authority to consider the said representation and the punishment of dismissal imposed on the applicant by the disciplinary authority. However, the appellate authority, vide impugned order dated 23.04.2019, rejected the appeal of the applicant, which is the impugned order against which relief is sought in the OA.

3. The learned counsel for the applicant commenced his arguments by stating that the applicant has been punished for ‘willful’ absence, which is not mentioned in the initial charge sheet served on the applicant. The learned counsel for the applicant, in support of his arguments, drew our attention to the order dated 28.09.2016 (Annexure A5) by which the respondents have initiated a regular departmental inquiry against the applicant. In particular,