Anand Mathur, Member (A).
1. The present Original Application culminates from the following impugned orders:
(A) Findings dated 05.02.2015
(B) Order of punishment dated 06.07.2015
(C) Appellate Order dated 23.10.2015.
2. Brief facts of the case, as borne out from the records of the case, are that a departmental enquiry (DE) was initiated against the applicant on the allegations of consumption of alcohol and being under its influence. He was served with the summary of allegations, list of witnesses and list of documents. On denial of charges, a detailed enquiry was conducted by the Enquiry Officer (EO). The EO framed charges against the applicant, held the enquiry and gave the following finding:
“It is alleged against you HC Shri Bhagwan, No. 487/OD (PIS No. 28840267) and Ct. Abhishek, No. 2597/OD (PIS No. 28C93554) that while posted at PS Narela, on 20.04.2013, you were detailed for duty of Motorcycle Patrolling (Libra 87) from 8:00 P.M to 8:00 A.M in the area of PS Narela. At about 9.28 P.M., a PCR call was received vide DD No. 62-A dated 20.04.13 at PS Narela mentioning therein that the police officials were taking money as bribe in front of Kasturi Ram Public School, Narela, Complainant mobile No.8588815202 was mentioned in the said PCR call. Subsequently a written complaint was also made by Sh Manoj Kumar R/o 354, Pocket-4, Sector-A-6, Narela, a worker of Aam Aadmi Party with other party members vide DD No. 34-B dated 21.04.13 PS Narela in which he mentioned about their PCR call made on 20.04.2013 and further alleged that you HC Shri Bhagwan, No. 487/OD and Ct. Abhishek, No. 2597/OD had also consumed alcohol while performing duty on 20.04.2013.
Both of you were under the influence of liquor and you Const. Abhishek No. 2597/OD has fled away when he made a PCR call on 20.04.2013.
On 20.04.2013, on receipt of above PCR cails, Inspr. Abhinendra Jain, SHO/Narela reached at the spot. You, HC Shri Bhagwan, No. 487/OD was got medically examined from Raja Harish Chandra Hospital through SI P.L. Meena of PS Narela vide MLC No.580/13. As per MLC alcohol was shown. Const. Abhishek No.2597/0D had already run away. Later on Inspr. Abhinendra Jain, SHO/Narela lodged a detailed report vide DD No.67-A dated 20.04.2013 PS Narela in this regard and also marked absent Const. Abhishek No.2597/OD, who wilfully had fled away from duty. In this regard SHO/Narela sent a detail report through ACP/Alipur vide No.2111/SHO/Narela dated 29.04.2013. It has been established that you HC Shri Bhagwan, No.487/OD were found under alcohol during your official duty and Const. Abhishek No.2597/OD fled away from his official to avoid medical examination so that his medical examination could not be conducted. There is serious lapse on the part of you HC Shri Bhagwan No.487/OD and Const. Abhishek No.2597/OD.
The above act on the part of you HC Shri Bhagwan, No. 487/OD (PIS No. 28840267) and Ct. Abhishek, No. 2597/OD (PIS No. 28093554) amounts to gross misconduct, negligence, carelessness and dereliction in discharge of your official duties which render you liable for departmental action under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980"
The contents of the summary of allegations were explained to delinquents HC Shri Bhagwan No.487/OD and Const. Abhishek No.2597/OD in simple Hindi by the then EO. The delinquents did not plead guilty of the allegations and preferred to contest. Hence, they were informed that they can engage some-one as their defence assistant if so desired. They did not want to engage anyone as their defence assistant. Hence, the then E.O. proceeded to record the statement of the P.Ws in support of the allegations. He recorded the statement of two PWs and the statements of the rest of the PWs were recorded by the undersigned.”
3. It is submitted that vide impugned order dated 6.7.2015, the Disciplinary Authority (DA) recorded the finding against the applicant, which reads as under:-
“I have carefully gone through the findings of the E.O., written representations of both the delinquents and other material/record brought on DE file. For the sake of natural justice, both the delinquents were also heard in OR. During OR, they reiterated the same contentions what-so-ever they have already mentioned in their written representations. During the course of departmental enquiry, 09 PWs have been examined and all have supported the prosecution theory. PW-1, Constable Kapil, Chittha Munshi of PS Narela proved that the delinquents were detailed on patrolling duty on 20.04.2013 on Libra-87 from 08.00 PM to C8.00 AM. PW-2, W/Ct. Reena, SIP Branch/OD, proved the posting of the delinquents in PS Narela. PW-3, SI P.L. Meena deposed that 20.04.2013, he was performing emergency duty in PS Narela and entrusted with: the call received Vide DD No. 62-A that police officials are taking money in Narela Industrial Area in front of Kasturi Ram College. He reached the spot and found a mob gathered there and raising slogans against delinquent HC Ahri Bhagwan deployed on L-87 and claiming that he has consumed liquor and demanded his medical examination. He got HC Shri Bhagwan medically examined at SRHC Hospital vide MLC No. 580/13 upon which the doctor opined the alcohol percentage 9 mg/dl. This PW informed all the facts to the senior officers and HC Shri Bhagwan was placed under suspension. He got the arrival of HC Shri Bhagwan lodged at District Lines on the orders of the SHO whereas the delinquent Constable Abhishek, detailed as Motorcycle rider on L-87, fled away from the spot and he was not found present at the spot. The Motorcycle was taken to Police Station by the beat officials. PW-4, ASI Kushalpal Singh, PS Narela proved the arrival of SI P.L.Meena lodged vide DD No. 10-B dated 21.04.2013 after attending the call of DD No. 62-A. PW-5 HC Pushpender deposed about the enquiry conducted by him into the complaint of Sh. Manoj Kumar r/o 354, Pocket-4, Sector A-67, Narela and proved his report. PW-6, SI Rajender Singh (now retired) proved DD Nos. 77-B, 64-A, 67-A and 92-B. PW-7, HC Sunil Kumar, Reader to SHO/Narela proved that the SHO had sent a report to ACP/Alipur against the delinquents vide Dy. No. 2111/SHO/Narela dated 29.04.2013. PW-8, Dr. Rajesh Kumar, SRHC Hospital, Narela, Delhi deposed that on 20.04.2013, he had conducted medical examination of HC Shri Bhagwan vide MLC No. 580/13. The doctor has further proved the authoncity of the MLC upon which the percentage of alcohol was found as 09 mg/dl. PW-9, Inspr. Abhinender Jain, the then SHO/Narela proved that on 20.04.2013, on receipt of information, he reached the spot and found many persons gathered on the spot and delinquent HC was also present there. The delinquent Constable Abhishek was not present there and later he. was got marked absent by him. There were allegations of taking money and consumption of alcohol, so, he got the delinquent HC medically examined at SRHC Hospital and during medical examination, alcohol was detected. He informed the senior officers and as per their directions, the suspension of HC Shri Bhagwan and absence of Constable Abhishek was lodged vide DD No. 67-A dated 20.04.2013.
Hence, the pleas/contentions taken by the delinquent HC in his representation are not found to be convincing at all as there is medical evidence of consumption of alcohol by the delinquent HC while on duty and there is nothing to believe that he had not consumed alcohol. The main plea of the delinquent HC that the smell of alcohol may come from a medicine being used for cough is also not tenable because when he was taken to hospital for medical examination, he did not complaint that he was having cough or cold and taken any medicine. From the MLC Sheet This shows that he was prepared by the doctor, the doctor has found alcohol percentage 9 mg/dl. This shows that he was drunk while on duty which is a serious misconduct, which resulted into making complaint against him by the public and even the gathering indulged in shouting slogans against the police.
As regard, the pleas/contentions taken by the delinquent Constable, the same are also not found to be convincing at all. Instead of performing his duty promptly, the delinquent Constable fled away from the spot when the PCR call was made by the public to avoid his medical examination. Had he been not under intoxication, he should have been remained present at the spot and should have been controlled the situation till the arrival of the SHO and the senior officers but he failed to do so. The depositions of SI P.L. Meena (I.O. of PCR call), examined as PW-3 and Inspr. Abhinendra Jain, the then SHO/Narela, examined as PW-9, clearly speaks that the delinquent Constable had fled away from the spot and the Motorcycle (L-87) issued to him for duty was got deposited with the help of beat staff. However, the medical examination of delinquent Constable Abhishek could not be got conducted as he fled away from the spot but in view of position explained above, it cannot be ruled out that he was not under the influence of liquor during duty time. Had they been performed their duty properly, no one can raise finger on them but they failed to do so and found under intoxication while on duty as is evident from the medical examination of the delinquent Hc Shri Bhagwan whereas other co-delinquent Constable Abhishek had been fled away from the spot to avoid his medical examination.
Hence, from the above facts and discussion, it has been established that both the delinquents are equally at fault. They cannot escape from their responsibilities in tackling the situation promptly and due to their misdemenaour, the public gathered on the spot had started shouting slogans against them. Had they been little bit cautious and informed the SHO or Control Room, the situation could have been controlled but they failed to do so. Thus, I am of the considered opinion that the E.O. has rightly held the delinquents guilty of the charge.
Keeping in view the overall facts and circumstances of the case in its totality and agreeing with the findings of the E.O., I, Shweta Chauhan, Addl. DCP-1/Outer District, Delhi, hereby award the punishment of forfeiture of two (02) years approved service permanently to HC Shri Bhagwan, No. 487/OD and Constable Abhishek, No. 2597/OD, entailing proportionate reduction in their pay, which would meet the ends of justice. Their suspension period from 20.04.2013 to 14.07.2013 is decided as period 'Not Spent on Duty?.”
4. Thereafter, applicant filed an appeal to the Appellate Authority (AA), which was rejected vide order dated 23.10.2015. The concluding part of the order reads as under:
“I have carefully gone through the plea taken by the appellant in his written submission as well as his oral submission during the Orderly Room. I have further gone through the facts and circumstances of the case as per record available in the DE file. On perusal of the record, it has been revealed that as per the MLC prepared by the Doctor the appellant was drunk while on duty which is a serious misconduct, which resulted into lodging of a complaint against him by the public and the people gathered there indulged in shouting slogans against the police. This conduct of the appellant tarnished the image of Delhi Police in the eyes of the public as such the appellant does not deserve any leniency. During the DE proceedings the appellant also failed to produce any documentary proof viz. prescription slip of Doctor which can prove that the appellant was suffering from cough and cold hence this plea is merely based on an afterthought. Moreover, his co-delinquent Constable Abhishek, No. 2597/0D had fled away from the spot to avoid his medical examination which clearly indicates that they were not performing their duty properly.
Keeping in view all the facts and circumstances, I have come to the conclusion that the plea taken by the appellant and his oral submission during the Orderly Room is devoid of merit. As such the punishment awarded to the appellant by the Disciplinary Authority is justified, hence requires no interference. Therefore, the appeal filed by the appellant is hereby rejected.
The appellant to be informed accordingly.”
5. Aggrieved by the order of DA and AA, applicant filed the present OA.
6. The argument put forth by the learned counsel for the applicant are that the applicant might have fled from the spot, had he consumed alcohol but he allowed himself to be medically examined which proves that he had neither consumed alcohol nor was under its influence. The EO wrongly and illegally mentioned in his discussion that PW-9 deposed that the mob complained to him against the applicant about taking of money or consumption of alcohol whereas PW-9 had deposed that there was no symptom to suggest that the applicant had consumed alcohol. Further, none in the mob complained against the applicant about taking of money or consumption of alcohol. It is also submitted that the finding of guilt solely based on the MLC of the applicant prepared by PW-8 is bad in law since the PW-8 admitted that the alleged percentage of alcohol found in the breath of the applicant could be due to cough syrup or certain medicines or he had only 9 mg/dl whereas under the influence of alcohol can be said when it is 30 mg/dl or above. Hence, the whole enquiry is vitiated on the ground that the most material witness i.e. Manoj Kumar was not examined in the D.E who could have proved the allegations against the applicant though he was very much available for being examined but was deliberately not examined. Moreover, when he is available for examination, his earlier alleged statement cannot be proved through anybody else than the author of the same. Therefore, in these circumstances, the action of the respondents in not examining this material witness vitiates the whole enquiry because non-examination of this witness greatly prejudiced the case of the applicant. Thus, the applicant was deprived of his valuable right of cross-examination of this witness who was not called and examined in D.E. Therefore, the whole enquiry is liable to set aside/quashed.
7. During the course of arguments, the learned counsel relied upon the decision of Hon’ble Apex Court in Hardwari Lal Vs State of UP, JT 1999 ( 8) SC 418, wherein it has been held as under:-
“3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.”
8. Learned counsel also relied on the case of Bachubhai Hassanalli Karyani Vs State of Maharastra, 1971 (3) SCC 930, wherein the Hon’ble Apex Court held as under:-
“4. The learned Counsel contends that the heavy sentence has been imposed on the appellant because he was found to have been drunk on that night. He says that Dr. Kulkarni, who examined the appellant based his conclusion merely on the facts that the appellant's breath was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. The doctor had admitted that a person, placed in the circumstances in which the appellant was put as a result of the accident, would be under a nervous strain and his gait might be unsteady The doctor had also admitted that a person could smell of alcohol without being under the influence of drinking No urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis produced by the prosecution.
5. It seems to us that on this evidence it cannot be definitely held that the appellant was drunk at the time the accident occurred.”
9. Per contra, the learned counsel for the respondents contended that during the DE proceedings, PW-8, Dr. Rajesh Kumar, SRHC Hospital deposed that on 20.04.2013, he had conducted medical examination of the applicant vide MLC No.580/13. The doctor further proved the authenticity of the MLC upon which the percentage of alcohol was found as 9 mg/dl. The plea of the applicant that the smell of alcohol may come from a medicine being used for cough is not tenable because when he was taken to hospital for medical examination, he did not complain that he was having cough or cold and taken any medicine. This shows that the applicant was drunk while on duty which is a serious misconduct, which resulted into making complaint against him by the public and even the gathering indulged in shouting slogans against the police. He and his co-delinquent cannot escape from their responsibilities in tackling the situation promptly and due to their misdemeanour; the public gathered on the spot and started shouting slogans against them. Had they been little bit cautious and informed the SHO or Control Room, the situation could have been controlled but they failed to do so. The question is whether he has consumed liquor or not and not about the quantity of 30 mg/dl or above but the fact is that he was drunk while on duty and alcohol was detected as 9 mg/dl. during his medical examination. Due to his misdemeanour, the public gathered there and started shouting slogans against police.
10. The complainant Manoj Kumar was cited as PW in the DE but he did not join the DE proceedings despite repeated summons sent to him by the enquiry officer. Hence, the EO officer made a request to the DA for dropping this PW. The DA examined the matter and directed the EO vide UO No. 16710/HAP/OD (P-1) dated 10.10.2014 that the EO shall bring on record the earlier statement of the complainant dated O9.05.2013 as well as his complaint dated 21.04.2013 by providing the copies of the same to the applicant and his co-delinquent under the provisions contained in Rule-16 (i) of Delhi of Police (Punishment & Appeal) Rules, 1980 and para 6-B (vii) of Standing Order No.A-20. Hence, there is no violation of any rule and the punishment awarded to the applicant is just, legal and commensurate to the gravity of his misconduct duly proved during the course of DE proceedings. Hence, from the above facts and discussion, it was established that the applicant and his co-delinquent were equally at fault. They cannot escape from their responsibilities in tackling the situation promptly and due to their misdemeanour; the public gathered on the spot and started shouting slogans against them. Had they been little bit cautious and informed the SHO or Control Room, the situation could have been controlled but they failed to do so. Thus, the DA was of the considered opinion that the EO has rightly held the applicant and his co-delinquent guilty of the charge.
11. Keeping in view the overall facts and circumstances of the case in its totality and agreeing with the findings of the EO, the DA awarded the punishment of forfeiture of two years approved service permanently to the applicant and his co-delinquent, entailing proportionate reduction in their pay and their suspension period from 20.04.2013 to 14.07.2013 was decided as period „Not Spent on Duty' vide order No.10511-35/HAP/OD (P-) dated 06.07.2015. Aggrieved with the above said order passed by the DA, the applicant had preferred an appeal to the AA i.e. Joint Commissioner of Police, Northern Range, Delhi. The same was considered and rejected by the AA by passing a detailed and self speaking order vide order No.3783-88/P.Sec.NR(III) dated 23.10.2015. Hence this OA.
12. He further relies upon the decision of Hon’ble Apex Court in B.C.Chaturvedi Vs UOI reported in (1996) 32 ATC 44, relevant paras 12 and 13 are reproduced as under:-
“12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”
13. We have given our utmost consideration to the rival contentions and have minutely perused the record placed before us.
14. We have gone through the enquiry report, order of DA as well as AA. All the contentions and submissions of the applicant have been dealt with by the Authorities in detail and well-reasoned orders have been passed by the Authorities.
15. The limited aspect which can be examined in the facts of the case are with regards to the proportionately of the punishment.
16. In a recent decision of the Hon’ble Apex Court in the case of Civil Appeal No.7382/2021 - Brijesh Chandra Dwivedi (Dead) Thr. LRs. Vs. Sanya Sahayak and Ors. decided on 25.01.2022, the Hon’ble Apex Court held as under:
“8. At the outset, it is required to be noted that in the disciplinary proceedings, the misconduct of driving the vehicle under the influence of the alcohol and when the employee was driving the vehicle under the influence of alcohol the vehicle met with an accident has been held to be proved and therefore the Disciplinary Authority awarded the punishment of dismissal. The only prayer on behalf of the appellant/s is that the punishment of dismissal is disproportionate to the misconduct proved and leniency may be shown and the order of dismissal be converted into compulsory retirement.
9. However, it is required to be noted that the employee was the driver posted in the Military and he was posted at the 12 th Battalion, P.A.C. at Fatehpur. The allegation against the employee is at the time when the employee was driving the vehicle under the influence of liquor, the truck/vehicle was carrying P.A.C. personnel and the said vehicle/truck met with an accident with a jeep. His defence that due to the break failure, the accident took place and the truck dashed to the backside of the jeep has been disbelieved. The fact that he was driving the truck under the influence of alcohol has been established and proved, even on the medical examination conducted on the same date. Driving a truck carrying the P.A.C. personnel under the influence of alcohol is a very serious misconduct and such an indiscipline cannot be tolerated and that too in the disciplined Military.
10. Merely because there was no major loss and it was a minor accident cannot be a ground to show leniency. It was sheer good luck that the accident was not a fatal accident. It could have been a fatal accident. When the employee was driving a truck carrying the P.A.C. personnel, the lives of those P.A.C. personnel who were travelling in the truck were in the hands of the driver. Therefore, it can be said that he played with the lives of those P.A.C. personnel, who were on duty and travelling from Fatehpur to Allahabad on Kumbh Mela duty.
11. Even otherwise, driving a vehicle under the influence of alcohol is not only a misconduct but it is an offence also. Nobody can be permitted to drive the vehicle under the influence of alcohol. Such a misconduct of driving a vehicle under the influence of alcohol and playing with the life of the others is a very serious misconduct. There are also other misconducts earlier committed by the employee.
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er, at the same time, considering the statement of the employee at the time of the enquiry and the explanation given by him that on going to duty on taking the vehicle from battalion, he had not consumed the liquor and after the accident with the objective to suppress the fear on coming to battalion and on parking the vehicle, he went directly to bus terminal, Ghazipur and consumed 100 ml of country made wine, though has not been accepted but that might be plausible and considering his 25 years of long service and fortunately it was a minor accident which resulted into some loss to the vehicle and considering the fact that the employee has since died, we find that the punishment of dismissal can be said to be too harsh and may be treated one for compulsory retirement. 13. In view of the above and for the reasons stated hereinabove and in the peculiar facts and circumstances of the case, narrated hereinabove, the award of punishment of dismissal can be said to be too harsh, the punishment of dismissal is directed to be converted into compulsory retirement of the employee. As the employee has since died, and on converting the punishment of dismissal to that of compulsory retirement, death-cum- retirement benefits as also the benefit of family pension, if any, shall be paid to the legal heirs of the deceased employee in accordance with law and bearing in mind that punishment of dismissal has now been converted into one of compulsory retirement. “ 17. In light of the above settled proposition of law, undisputed fact remains that even though there is some medical evidence of consumption of liquor, considering the fact that the applicant did not escape and submitted to medical examination and further participated in enquiry and gave explanation keeping in view his conduct, non examination of one of the vital witnesses as well as testimony of doctor, circumstances of the case, stated hereinabove, the award of punishment of forfeiture of two years approved service permanently entailing proportionate reduction in their pay and further treating suspension period from 20.04.2013 to 14.07.2013 as period “Not Spent on duty” can be said to be too harsh and shocks the conscience of the Tribunal. 18. Hence, the present OA is partly allowed. The matter is remanded back in so far as the award of punishment of forfeiture of two years approved service permanently entailing proportionate reduction in their pay and further treating suspension period from 20.04.2013 to 14.07.2013 as period “Not Spent on duty” is concerned. The punishment so imposed is set aside. The AA may revisit the order of punishment as well as deal with the suspension period in appropriate manner to its wisdom by way of passing speaking and reasoned order after following the principles of natural justice within period of two months from the date of receipt of certified copy of this order. There shall be no order as to the costs.