THE HON’BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO. 7356 OF 2014
Date:27.10.2014
Between: Shamsher Singh …Petitioner And The Union of India rep. by its Director General, CISF,New Delhi and four others ….Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO. 7356 OF 2014
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue a writ of mandamus declaring the action of the second respondent in rejecting the revision petition filed by the petitioner vide Order No. V-15014/L&R/SS/Rev/SS/2013-17, dated 23.01.2014 as illegal, contrary to law and consequently direct the respondents to set aside the said order by reinstating the petitioner back into service with all consequential benefits.
2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
3. The brief facts necessary for considering the writ petition may be stated as follows:
4. On 08.05.2013 when the petitioner came to duty, it was noticed that he attended duty in a drunken condition. Thereafter, he was taken to KG Hospital, Visakhapatnam and N.T.P.C. Hospital for medical examination. It is said that the petitioner did not co-operate with the medical officers either for medical check up or for treatment. However, his blood and urine samples were taken and they were taken to A.P. Forensic Science Laboratory, Hyderabad for analysis. The samples of analysis revealed that no alcohol was noticed and the samples did not contain Ethyl Alcohol.
5. However, in the course of departmental enquiry, the enquiry officer taking into consideration the facts that the petitioner refused to undergo medical examination and delayed the process of medical check up, concluded that the charge levelled against him was proved. Thereafter, he submitted enquiry report to the disciplinary authority and the disciplinary authority concurred with the findings of the enquiry officer and inflicted the punishment of dismissal from service against the petitioner. The petitioner preferred an appeal to the second respondent which was also dismissed. Thereafter, the petitioner preferred revision to the first respondent. As there was some delay in disposal of the revision, the petitioner approached this Court by filing a writ petition which was disposed of directing the second respondent to dispose of the revision petition expeditiously. The revision in consequence thereof was disposed of dismissing the revision petition. Aggrieved thereby, the petitioner preferred the present writ petition.
6. The following contentions have been urged by the learned counsel appearing for the petitioner:
i) Absolutely there was no evidence showing that the petitioner was in a drunken condition. The report of analyst showed that the blood and urine samples did not contain ethyl alcohol and therefore, the report of the enquiry officer is not based on evidence and the disciplinary authority ought not to have accepted the findings recorded by the enquiry officer.
ii) This is not a case where the petitioner was in a drunken condition while on duty and even according to the respondents when the petitioner wanted to attend duty he was found in a drunken condition and he was not allowed to duty.
Therefore, according to the learned counsel appearing for the petitioner the punishment of dismissal from service is grossly disproportionate.
7. On the other hand, it has been contended by the learned counsel appearing for the respondents that there is some other material apart from medical evidence showing that the petitioner was in a drunken condition at the time when he came to duty and that attending duty in a drunken condition is a grave misconduct and this Court would not exercise the judicial review in respect of a decision rendered by the authorities on appreciating the evidence and also that the punishment which is proportionate to the gravity of the misconduct needs no interference.
8. Learned counsel appearing for the respondents relied on STATE
[1] OF PUNJAB AND OTHERS v. RAM SINGH EX-CONSTABLE
wherein the Supreme Court expressed the view that even a single act of misconduct by the police officer while on duty wandering near bus stand with service revolver is a grave misconduct for which the punishment of dismissal from service is proper.
9. Even if the contention of the respondents is accepted, the conduct exhibited by the petitioner in the present case is not akin to the conduct of the police officer in the aforesaid judgment. The very fact that the presence of the alcohol was not noticed in the blood and urine samples of the petitioner shows that he was not drunk when he came to attend duty.
10. However, the crucial question in this case would be whether the department could be able to establish the misconduct of the petitioner even by standard of preponderance of probability which is required in a departmental enquiry.
11. In this context, it would be relevant to look into the enquiry report.
In the enquiry report it is mentioned by the enquiry officer that the witnesses stated in the enquiry that the petitioner was smelling alcohol, that apart there is no other evidence showing that the petitioner was in a drunken condition. Merely because the petitioner initially refused to undergo the medical examination, it cannot be said that since he was in a drunken condition, he was not responding to the directions of the authorities. The enquiry officer also recorded a finding that the petitioner voluntarily disobeyed the lawful instructions of the Commandant which has been proved by the statements of PW-1 and the court witness. As already said, the mere fact that the petitioner was not responding to the directions of the superior officials, in the absence of any medical evidence, it cannot be said that the petitioner was in a drunken condition. When the report of the Analyst clearly discloses that the ethyl alcohol was not found in the blood and urine samples of the petitioner, it cannot be said that the department proved the misconduct of the petitioner even by the standard of preponderance of the probability.
12. The learned counsel appearing for the respondents relied on B.C.
[2] CHATURVEDI v. UNION OF INDIA AND OTHERS
and BHAGWAT PARSHAD v. INSPECTOR GENERAL OF POLICE, PUNJAB AND
[3] OTHERS
to argue that this Court would not exercise the judicial review against the findings of fact recorded by the enquiry officer or the disciplinary authority and the penalty which is proportionate to the misconduct of the petitioner is not open to judicial review for imposing a lesser punishment. As already said, the crucial question in this case would be whether the misconduct itself has been proved by the respondents in the course of the enquiry. If this Court comes to the conclusion that the misconduct has not been proved and the findings recorded by the enquiry officer are not based on evidence or contrary to the evidence before the enquiry officer, then this Court would certainly in exercise of powers of judicial review interfere with the findings recorded by the enquiry officer. As the report of analyst clearly showed that there is no ethyl alcohol in the blood and urine samples of the petitioner, by means of other evidence which is not worthy of consideration, the enquiry officer ought not to have recorded a finding that the misconduct has been proved against the petitioner. The findings recorded by the enquiry officer, therefore, are contrary to the evidence before him and therefore, they are liable to be set aside by this Court in exercise of powers of judicial review under Article 226 of the Constitution of India. The finding recorded by the enquiry officer which is confirmed in the appeal as well as in the revision is therefore hereby set aside. The petitioner was removed from service on 10.07.2013. This Court arrived at the conclusion that the charge of misconduct levelled against the petitioner has not been proved, but this Court did not incline to record any finding that the charge is false or baseless. Therefore, in the considered view of this Court, the petitioner is not entitled for back wages.
13. Consequently, the respondents are directed to reinstate the petitioner into service with the benefit of continuity of service without back wages.
14. The writ petition is accordingly disposed of. There shall be no order as to costs. Miscellaneous petitions, if any, filed in this writ petition shall stand closed.
R. KANTHA RAO, J Date:27.10.2014 CCM THE HON’BLE MR JUSTICE R. KANTHA RAO WRIT PETITION NO. 7356 OF 2014
Date:27.10.2014
[1] (1992) SCC 54
[2] (1995) 6 SCC 749
[3] AIR 1970 Punjab & Haryana 81