At, High Court of Jharkhand
By, THE HONOURABLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner: A.K. Sahani, Advocate. For the Respondents: Rohan Kashyap, A.C. to G.A.
1. Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by the petitioner praying therein for quashing the order as contained in Memo No.115 dated 5.3.2013 whereby the petitioner has been dismissed from service and also the appellate order as contained in Memo No.1315 dated 16.08.2013 whereby the appeal preferred by the petitioner has been rejected.
3. The facts of the case lie in a narrow compass. The petitioner was appointed as Constable under Jharkhand Armed Police and he was posted in JAP-7. Vide office order dated 27.09.2012 the department decided to initiate proceeding against this petitioner and the petitioner was suspended with effect from 31.10.2012 in contemplation of a departmental proceeding. A draft charge-sheet was served upon the petitioner asking explanation and after looking to the reply filed by the petitioner to the draft charge-sheet, a final charge-sheet was issued on 10.11.2012.
The first part of the charge-sheet was that the petitioner always used to leave duty place without permission and take alcohol and he has misbehaved with the Superintendent of Police, Chatra. The second part of the charge-sheet is that the petitioner used to avoid the order of authority and go to village for taking liquor and create nuisance.
Pursuant to the issuance of charge-sheet, Inquiry Officer was appointed and the petitioner participated in the inquiry proceeding and the Inquiry Officer proved the charge partly. He categorically held that it has not been proved that he has given/used filthy language with the Superior Officer; however, the Inquiry Officer has found the petitioner guilty for going outside to take liquor with the villagers. Pursuant to the submission of the enquiry report, the disciplinary authority has passed the impugned order holding that the petitioner is guilty for both the charges.
The petitioner challenged the order of termination before the Appellate Authority, however he could not succeed.
4. Mr. A. K. Sahani, learned counsel for the petitioner raised following submission for assailing the impugned order.
(i) The charge is vague and not specific, inasmuch as, no specific date has been given as to when and on which date and with whom he has been seen taking liquor.
(ii) Though one part of the charge has been proved by the Inquiry Officer that he used to go to the village and take liquor, but the other part of the charge that he has used filthy language with the Superior Officer has not been proved; as such the Disciplinary Authority without differing with the findings of the Inquiry Officer should not have held that all the charges have been proved.
(iii) For holding any delinquent that he is under influence of liquor he should be medically examined and since in the instant case the petitioner has been alleged to have been habitual drunker no medical examination was done nor any medical examination was done earlier.
(iv) The Appellate Authority while dismissing the appeal of the petitioner has taken note of the past convictions; however the same was not part of the charge; as such this finding is non-est in the eye of law.
He lastly submits that no independent witness has been examined because the charge of taking liquor with the villagers cannot be proved without the deposition of any of the villagers. Relying upon the aforesaid contention learned counsel submits that the instant writ application should be allowed.
5. Mr. Rohan Kashyap, learned counsel for the respondent-State submits that so far as the first contention of the petitioner that the charge is vague is misconceived. By going through the charge it transpires that it has been categorically stated that the petitioner is a habitual drunker and he frequently used to go to the village for taking alcohol; as such there was no need or occasion to give specific date as to on which date the petitioner has gone to take liquor.
On the second ground that the Inquiry Officer has exonerated the petitioner for one part of charge but the Disciplinary Authority has used the word that all the charges against this petitioner has been proved is just use of language but it has been proved in the enquiry proceeding that the petitioner is a habitual drunker and he frequently used to go to the village and taken drink.
For the 3rd contention of the petitioner that no medical examination was done; learned counsel referred to the appellate order and submits that the Appellate Authority has dealt this ground in details and further submits that since the area was such that it was not possible at the night time to have a medical check-up of the petitioner; the medical examination was not conducted. However, he is unable to brought on record any document as to whether initially also there was any medical check-up of the petitioner because the allegation against the petitioner is that he is a habitual drunker.
For the last contention that the Appellate Authority has dismissed the order relying upon the past conviction of the petitioner; he submits that this cannot be ignored because admittedly; the petitioner has been convicted for his past offences; as such this submission of the petitioner that the appellate authority has gone beyond charge is misconceived. Relying upon the aforesaid contention learned counsel for the respondent prays for dismissal of this case.
6. Having heard learned counsel for the parties and after perusing the documents annexed with the respective affidavit and the averments made therein; it appears that the petitioner has been alleged for the charge that he used to leave duty place without permission and take alcohol with the villagers. The other allegation was that after taking liquor he used filthy language with the Superior Officer. This part of the charge has not been proved by the Inquiry Officer. However, the Disciplinary Authority without taking into consideration the reply to the show-cause notice pass the order of termination by holding that all the charges has been proved.
It further transpires that the petitioner has taken specific stand that no medical examination has been conducted for holding the charge for taking liquor; however the same was not considered by the Disciplinary Authority. From the entire enquiry report/other relevant documents it appears that not even a single time the petitioner has been sent for medical examination; though the charge was general in nature that the petitioner frequently goes to the village and takes liquor with the villagers.
7. It has been held in catena of judgments that to punish a person on the ground that he was under the influence of alcohol in a work place; a proper test report of the level and amount of alcohol of blood and urine is necessary. Mere oral evidence to punish a person to the extent of termination has been condemned by the Court.
In the instant case admittedly; one part of the charge has not been proved that he has misbehaved with the Superior Officer over telephone. So far as other part of the charge that the petitioner frequently uses to take drink with the villagers after leaving the work place; it is an admitted position that not even on a single occasion the petitioner has been sent for medical examination; what to say about the present charge. Thus, only on the basis of oral evidence of two Police Constables; the order of termination on the ground of taking liquor that too without any independent witness is too harsh and excessive.
It further transpires that this ground which has been taken by the petitioner in his reply to the second show-cause notice has no
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t been considered by the Disciplinary Authority. 8. In this view of the matter, the instant writ application is partly allowed. The impugned order of dismissal from service as contained in Memo No.115 dated 5.3.2013 as well as the appellate order as contained in Memo No.1315 dated 16.08.2013, are hereby, quashed and set aside. 9. The respondents are directed to reinstate the petitioner in service and pass a fresh order on the quantum of punishment after considering the reply to the showcause filed by the petitioner and keeping in mind the discussion made hereinabove. 10. It is made clear that the respondents will also take a decision on the question of payment of salary from the date of suspension till the date of reinstatement. 11. With the aforesaid observation the instant writ application stands partly allowed.