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2017 DIGILAW 1054 (JHR)

Anil Kumar, Constable No. 065180526 v. Union of India

2017-07-07

PRAMATH PATNAIK

body2017
JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for setting aside order dated 10.05.2012 whereby petitioner has been removed from service; appellate order dated 31.07.2012 and revisional order dated 20.11.2012 whereby order passed by the disciplinary authority has been confirmed. 2. The factual matrix, bereft of unnecessary details, is that petitioner while working on the post of Water Porter under respondent no. 3, was served with a show cause notice on 06.10.2011, alleging inter alia that he remained absent from 31.05.2011 to 03.06.2011 and further on 06.08.2011 he went outside without any information and returned after drinking liquor along with three pouch of liquor. Thereafter, enquiry officer was appointed, who after enquiry submitted the enquiry report, upon consideration of which, the disciplinary authority passed the impugned order of punishment of removal from services vide order dated 10.05.2012. Against the order passed by the disciplinary authority, the petitioner preferred appeal which stood rejected vide order dated 31.07.2012, against which, the petitioner preferred revision which met with the same fate. Hence, the present writ application has been filed by the petitioner for redressal of his grievances. 3. Learned counsel for the petitioner submitted that on 06.10.2011, the petitioner appeared before the Enquiry officer and submitted his defence stating that on the alleged date of occurrence, the petitioner became serious and went to hospital for his treatment, however, at that time, the petitioner could not produce the documentary proof but when the petitioner became well, he furnished the medical prescription; but, without considering his defence and his past good service record, the respondent out rightly removed the petitioner from services. Learned counsel for the petitioner further submitted that considering the fact that petitioner was ill, the punishment imposed upon the petitioner appears to be grossly disproportionate. 4. Reiterating the averments made in the counter affidavit, learned counsel for the respondents submitted that initially the petitioner overstayed for the period 11.05.2011 to 18.05.2011 and thereafter deserted the camp from 31.05.2011 to 03.06.2011 without any notice and again on 06.08.2011 went outside and returned after consuming liquor and also carrying with three pouch of liquor with him. Thereafter, a preliminary enquiry was conducted, in which, prima facie the allegation levelled against the petitioner was found to be fully proved. Thereafter, a preliminary enquiry was conducted, in which, prima facie the allegation levelled against the petitioner was found to be fully proved. Thereafter, a full-fledged departmental enquiry was conducted, in which, after affording full opportunity to the petitioner, impugned order of punishment was passed by the disciplinary authority, which has duly been confirmed by the appellate as well as by the revisional authority, which needs no interference by this Court. 5. After having heard learned counsel for the respective parties at length and on perusal of the documents on record, I am of the opinion that the petitioner has not been able to demonstrate any legally tenable point to warrant interference by this Court, due to following facts, reasons and judicial pronouncement: (I).In the present case, a departmental proceeding was initiated against the petitioner on the allegation that he deserted the camp from 31.05.2011 to 03.06.2011 without any notice; and again on 06.08.2011 went outside and returned after consuming liquor carrying with three pouch of liquor with him. From perusal of records, it is quite evident that since the inception of departmental proceeding till its culmination there is no procedural irregularity. Learned counsel for the petitioner though came up with a case that since no proper alcohol test was done, hence, factum of consuming liquor cannot be said to be established, but, evidence of the witnesses that the delinquent was carrying three pouch of liquor remained in tact has been fully proved. (ii).Furthermore, the Hon'ble Apex Court in the case of Ex- Constable Ramvir Singh Vs. Union of India & Ors as reported in (2009) 3 SCC 97 has held that the punishment of dismissal inflicted upon the appellant is not disproportionate considering the fact that the judicial review of the matter is not supposed to substitute its own opinion on reappraisal of the evidence in exercise of power of judicial review. However, the Court can interfere with the punishment imposed when it is found to be totally irrational or outrageous defiance of logic. This limited scope of judicial review is permissible only when the punishment is shockingly disproportionate. However, the Court can interfere with the punishment imposed when it is found to be totally irrational or outrageous defiance of logic. This limited scope of judicial review is permissible only when the punishment is shockingly disproportionate. (iii).In the case at hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied and moreover the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Supreme Court in the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another as reported in (2009) 8 SCC 310 , specially at paragraph 15, which is quoted herein below: “15.The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. .............. ” Applying the aforesaid principles of Hon'ble Apex Court, as indicated herein above, I find no reason to interfere with the impugned order. 6. In view of the aforesaid facts, reasons and judicial pronouncements, as stated in the foregoing paragraphs, the impugned order of dismissal from services; appellate order and the order passed by the revisional authority do not warrant interference by this Court. Hence, the writ petitioner, being devoid of any merit, is dismissed.