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2010 DIGILAW 3300 (PNJ)

Rajbir Singh v. State Of Haryana

2010-12-09

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1. Vide the impugned order dated 6.3.2006 (Annexure P-6), petitioner has been removed from service pursuant to the disciplinary proceedings held against him by the Disciplinary Authority. Order of removal came to be challenged by the petitioner before the Appellate Authority, i.e., the Financial Commissioner & Principal Secretary to Government Haryana, Transport Department. The Appellate Authority dismissed the appeal vide order dated 4th September,2006 (Annexure P-8). Both the orders are under challenge in the present petition. 2. It may be useful to briefly notice the factual position leading to the filing of the writ petition. The petitioner was serving as a Clerk in the office of respondent No. 2. He was served with a charge sheet (Annexure P-l) containing following charges: "DETAIL OF CHARGES OF RAJBIR SINGH, CLERK, HARYANA ROADYWAYS, GUR-GAON. According to the report of the Manager of the Workshop, dated 1.6.2004, you Sh. Rajbir Singh, Clerk, posted in PMA Branch, has come in the office in the influence of liquor at about. 2.00 P.M. and misbehaved with the staff em ployees, which has adverse effect on other employees and 6eeowno came hindrance in the office work, which caused undiscipline and conduct rules were violated. By doing so, you have shown undiscipline & caused negligence in duty which is a gravest misconduct. Therefore, you are entitled to be punished under Rule 7 of the Haryana Civil Service (Punishment & Appeal) Rules, 1987. Sd/- Transport Commissioner, Haryana" 3. Reply was solicited. The petitioner submitted his reply to the charge sheet denying the allegations contained therein. The disciplinary authority, however, ordered an inquiry into the alleged misconduct/charge. The Inquiry Officer submitted his report dated 25.4.2005 (Annexure P-4) holding that the charges against the petitioner stood proved. At this stage, it is pertinent to note that the charge against the petitioner contained two count of allegations: (i) the petitioner was under the influence of liquor when he attended the office, (ii) that he misbehaved with the co-employees. The Inquiry Officer held both the allegations proved. Insofar as the allegation that the petitioner was under the influence of liquor, has been established as he was medically examined and the report of the Doctor clearly established that the petitioner was under the influence of liquor. The Inquiry Officer held both the allegations proved. Insofar as the allegation that the petitioner was under the influence of liquor, has been established as he was medically examined and the report of the Doctor clearly established that the petitioner was under the influence of liquor. Insofar as the second allegation that the petitioner misbehaved with the employees is concerned, though the Inquiry Officer held the allegations to be proved, however, from the perusal of the Inquiry report, it appears that this allegationhas been held to be established or proved against the petitioner, on the basis of testimony of two departmental witnesses who appeared in support of the charge, namely, Surinder Singh, Manager of the Workshop and Shri Vishnu Bhagwan posted in PMA Gurgaon Depot. From the statement of the witnesses, it appears that none of the witnesses deposed that the petitioner misbehaved with employees in their presence. However, Vishnu Bhagwan, witness stated that other staff told that Rajbir Singh has taken the drink and he was making a noise. No other staff member has appeared as witness. Even neither Vishnu Bhagwan nor any such staff member has stated that they had seen the petitioner making noise and misbehaving with anyone. The findings of the Inquiry Officer to this extent is perverse as there is no evidence on record to substantiate the same 4. Mr. R.D. Sharma, learned Deputy Advocate General, Haryana appearing for the State has vehemently argued that since on the basis of evidence adducer by the respondents, the allegations against the workman have been established, the Court should not entertain any challenge to the validity of the findings of the inquiry report in absence of any specific challenge to the inquiry report in the prayer. Even though there is no specific prayer in respect to enquiry report, however, in the body of the petition, the petitioner has specifically assailed the inquiry report in ground (iii) which is reproduced herein: "(iii) THAT THE PRESENT WAS A CASE OF NO EVIDENCE. Two prosecution witnesses were examined by the Department. None of the witness has even alleged that petitioner has misbehaved with any employee or created any type of hurdle. So apart from that it has also been proved that petitioner has taken medicine as there was a pain in his tooth. The said medicine was having alcoholic smell. Two prosecution witnesses were examined by the Department. None of the witness has even alleged that petitioner has misbehaved with any employee or created any type of hurdle. So apart from that it has also been proved that petitioner has taken medicine as there was a pain in his tooth. The said medicine was having alcoholic smell. So the present was a case of no evidence and wrongly the petitioner,- as held to be guilty of the charges." This Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot deny the consideration merely on technicality particularly when there is specific averment in the body of the writ petition. Such pleadings cannot be ignored. Notwithstanding, the fact that there is no specific prayer challenging the inquiry on the grounds raised in the writ petition, in the interest of this Court is entitled to look into the matter and validity of the inquiry report and findings recorded therein. This, contention of Mr. Sharma is thus, rejected. 5 There is absolutely no dispute that the petitioner was under the influence of liquor which fact has been established in the inquiry. The disciplinary authority has considered this aspect and passed the order of removal. However, from the order of the Appellate Authority, it is apparent that there is no reappraisal/appreciation of the material on record and the finding recorded by the disciplinary authority have been simply affirmed without due application of mind. Order of the appellate authority,.thus, suffers from non-application of mind. 6. Mr. Malik, learned counsel appearing for the petitioner has contended that in view of the nature of the misconduct, quantum of punishment of removal from service would be too harsh to be accepted. It is agreed that the enquiry as whole definitely have influenced the mind of the disciplinary authority while considering the quantum of punishment. Mr. Sharma, however, has contended that once the charge in part is proved, this Court in exercise of power of judicial review should not interfere in the quantum of punishment. I am unable to accept this contention. It is the duty of the Court to examine whether the punishment imposed is in accordance with the law or not. 7. Though quantum of punishment is within the domain of the disciplinary authority but if the findings recorded, by the inquiry officer is patently perverse in nature, judicial intervention is warranted. 8. I am unable to accept this contention. It is the duty of the Court to examine whether the punishment imposed is in accordance with the law or not. 7. Though quantum of punishment is within the domain of the disciplinary authority but if the findings recorded, by the inquiry officer is patently perverse in nature, judicial intervention is warranted. 8. In a similar circumstance, this Court in Ram Krishan, Constable No. 141 v. The State of Hary- ana and others, 1990 (1) Recent Services Judgments 637 set aside the order of dismissal from service in respect of a constable who was found under the influence of liquor, but there was no allegation of any misconduct. 9. A similar view has been expressed in Punjab State and others v. Gurdip Singh 1994(3) S.CT. 261 : 1994(3) Recent Services Judgments 71. Merely for a single act of misconduct, termination was ordered. This Court set aside the termination. 10. It is settled principal of law that the Court should not interfere in the quantum of punishment unless the same pricks the conscience of the Court. However, it is a case where the Enquiry Officer has returned a finding without any evidence on record, in respect of one of the allegations. It seems that the disciplinary authority has been influenced by the findings of the Enquiry Officer wherein he has held allegation of misbehavior of the employee as established. Thus, the quantum of punishment i.e. removal from service seems to have been inflicted considering all the allegations to have been proved against the petitioner which is not a fact on record. 11. In view of the above circumstances, I am of the considered view that the removal from service is too harsh keeping in view the allegations against the petitioner. This petition succeeds partly. While setting aside the impugned order in so far as the quantum of punishment is concerned, case is remitted back to the the disciplinary authority to pass a fresh order and impose any lesser punishment prescribed under law other than removal from service within a period of three months from the date of receipt of a certified copy of this order.