Court No. - 36
Case :- WRIT - A No. - 19666 of 2011 Petitioner :- Const. No. 2520 C.P. Ravindra Yadav Respondent :- State Of U.P. And Others Counsel for Petitioner :- Amit Kumar Singh,Sunil Kumar Singh Counsel for Respondent :- C. S. C.
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
The present petition is directed against the orders dated 20.01.2010 passed by the Deputy Inspector General of Police, Varanasi for dismissal of services of the petitioner as also the order passed by the appellate court and revisional authority dated 06.12.2010 and 22.02.2011, whereby punishment of dismissal imposed on the petitioner has been affirmed while rejecting the statutory appeal and revision filed by him.
The charge against the petitioner as indicated in the charge sheet read as under:-
“Fkkuk yDlk okjk.klh ij fu;qfDr ds nkSjku fnu0 27-11-09 dks le; yxHkx 12-00 cts fnu eas vki ik.M;s iqj pkSjkgs ds ikl fLFkr ns'kh 'kjkc dh nqdku ds lkeus lM+d ij okonhZ 'kjkc ds u'ks eas /kqr vpsrkoLFkk eas iM+s ik, x,A pkSdh izHkkjh ik.Ms;iqj m0fu0 Jh vkuUn dqekj frokjh }kjk pkSdh ik.Ms;iqj ij fu;qDr vkj{kh ijekuUn ik.Ms; o vkj{kh jkeukFk ;kno ds lg;ksx ls izkFkfed mipkj gsrq vkidks ia0 nhu n;ku jktdh; fpfdRlky; Hkstk x;k tgka ij MkDVj }kjk psd fd, tkus ij vki }kjk 'kjkc dk lsou fd;k tkuk ik;k x;k bl izdkj vki }kjk iqfyl dh onhZ /kkj.k fd, gq, lkoZtfud LFkku ij 'kjkc dk lsou dj lM+d ij vpsrkoLFkk eas /kwfey gqbZ gSA“ iM+s gksus ls turk eas iqfyl dh Nfo The departmental enquiry had been initiated after serving a charge sheet upon the petitioner. The petitioner denied the charge of consuming liquor after duty on 27.11.2009, and that he was found in an inebriated state at about 12.00 noon near Pandeypur Chauraha, Varanasi.
During the course of enquiry, six witnesses had been examined on behalf of the department. Two of the witnesses namely Constable Parmanand Pandey and Constable Ramnath Yadav who were deputed in the Police Station, Luxa, Varanasi and took the petitioner to the Hospital namely Pt. Deen Dayal Upadhayay Government Hospital, had been cross examined by the petitioner. Both of them had submitted that they took the petitioner to the hospital on the instructions given by the Station House Officer of the said police station.
Other witnesses examined by the enquiry officer admitted during the course of cross examination that they believed that the petitioner had consumed liquor on the basis of report of the Doctor, who had examined the petitioner in the Government Hospital and also on the statement given by the Constable namely Parmanand Pandey and Constable Ramnath Yadav, who had asserted that the petitioner was found in inebriated state near Pandeypur crossing, Varanasi, and was admitted in the hospital.
The enquiry officer had, thus, concluded that the petitioner had committed misconduct of consuming liquor while leaving to his home from duty.
It is observed by the disciplinary authority that the petitioner being a police officer, was required to remain alert at all times and, in case, of consumption of liquor, he would not be available for emergency duty, if so called. The act of consuming liquor by the petitioner during the day time was in violation of the Code of Conduct of the police officials. It is observed that the petitioner being a member of uniform force is required to remain alert even off duty and not to indulge in such behaviour which would undermine the dignity and status of the police force.
Challenging the order impugned, learned counsel for the petitioner submits that the Doctor's report regarding consumption of liquor by the petitioner is vague. No blood or urine examination was done during the admission of the petitioner in the Hospital which would have confirmed the allegations of the liquor being consumed by the petitioner.
Reliance has been placed upon the judgements of this Court in Sahdev Singh Vs. U.P. Public Service Tribunal, Lucknow & others reported in 2001 (2) AWC 983, Writ-A No.2230 of 2014 (Shiv Raj Singh Vs. State of U.P. & others), Writ-A No.3084 of 2011 (Vijay Kumar Singh Vs. State of U.P. & others and of the Apex Court in Munna Lal Vs. Union of India & others reported in 2010 (15) SCC 399 to submit that in absence of proper blood and urine examination, the charge of consumption of liquor cannot be sustained.
Learned Standing Counsel, on the other hand, defended the order impugned for the reasoning given therein and submits that the factual enquiry made on the settled principles of law cannot be interfered. This Court in Article 226 of the Constitution of India cannot take a different view of the matter.
Having perused the record and the findings returned by the enquiry officer as affirmed by the disciplinary authority, this Court finds that the fact that the petitioner was found in inebriated state near the police station Luxa, Varanasi, wherein he was posted and that he was admitted in the hospital by two police constables posted therein, is not disputed. It cannot be said that the petitioner was not provided due opportunity of hearing during the course of enquiry. The petitioner had cross examined the witnesses produced by the department, who proved the misconduct. The enquiry cannot be vitiated for any reason.
It is not possible for the Court to say that the disciplinary authority had taken a wrong view on the enquiry report.
However, at this stage, learned counsel for the petitioner submits that considering the age of the petitioner who is about 46 years as on date, a liberal view may be taken as the petitioner undertakes that he will not repeat any such act in future and also that he would not claim back wages for the period of suspension and dismissal.
Considering the said submission, this Court being aware of the legal position that the punishment awarded by the Disciplinary Authority is not to be interfered ordinarily, is of the view that one chance shall be provided to the petitioner to improve himself. Balancing the equities, in the light of the undertaking given by the petitioner, the punishment of dismissal awarded to the petitioner is being modified with the following directions:-
The petitioner shall approach the Senior Superintendent of Police, Varanasi within a period of 15 days alongwith certified copy of this order to file an affidavit giving undertaking as noted hereinabove. If the petitioner presents himself before the officer concerned as aforesaid, he shall be allowed to join the duty within a further period of 15 days, thereafter, while keeping him under observation. In case of any such future act of the petitioner, it would be open for the disciplinary authority to take necessary action against the petitioner.
It is made clear that the petitioner shall only be entitled to salary for the period of working w.e.f the date of joining and would not be entitled to claim any back wages or salary from the date of suspension till the date of joining. However, the period of discontinuance in service, as aforesaid, shall be counted as continuous service for the purpose of computation of qualifying service for grant of retiral benefits, and determination of seniority of the petitioner in the department but in no case any financial benefits for the said period shall be accorded to the petitioner.
Subject to the above terms and conditions, the present petition is disposed of.
Order Date :- 30.4.2019 Himanshu