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2017 DIGILAW 448 (RAJ)

Om Prakash v. State (Home Department)

2017-02-08

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. A challenge has been made to the orders dated 21-5-2010, 6-8-2010 and 28-11-2011, i.e. order of penalty as confirmed in appeal and review where the petitioner has been removed from service from the post of constable following a departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958 (hereinafter 'the Rules of 1958'). 2. The facts of the case are that the petitioner a constable posted at Kotwali Alwar was served with a charge-sheet under Rule 16 of the Rules of 1958 on the ground that while he was sent for job training on 1-9-1993 at 8.00 AM to Police Line Alwar he reached it only on 3-9-1993 at 1.30 PM in an inebriated state with blooded injuries on his person. On medical examination he was found to have consumed excessive liquor. In the following enquiry, the Inquiry Officer found the charge of reporting for duty in an inebriated condition proved against the petitioner. The charge proved being very serious more so in the context of the uniformed service requiring discipline, the petitioner was removed from service vide penalty order dated 15-9-1995. A challenge to the said order was laid in writ petition No. 308/2002, which was partly allowed vide judgment dated 13-7-2009 with a direction that the petitioner be afforded an opportunity of hearing after providing a copy of the enquiry report to him. 3. Following the order dated 13-7-2009 in SBCWP No. 308/2002, the petitioner was supplied a copy of the enquiry report and provided an opportunity of hearing. Thereafter vide order dated 21-5-2010 he was again punished with the penalty of removal from service. That order was upheld in appeal on 6-8-2010. The Reviewing Authority vide order dated 28-11-2011 found no ground for interfere. Hence this petition. 4. Counsel for the petitioner has relied on the judgment in the case of State of Rajasthan v. Duli Chand, 1997 WLC (Raj.)UC 658 and General Secretary Hindustan Zinc Majdoor Union v. Hindustan Zinc Ltd., 1997(3) RLW Raj. 1552 to contend that punishment of removal of the petitioner from service is shockingly disproportionate to the misconduct found. Hence this petition. 4. Counsel for the petitioner has relied on the judgment in the case of State of Rajasthan v. Duli Chand, 1997 WLC (Raj.)UC 658 and General Secretary Hindustan Zinc Majdoor Union v. Hindustan Zinc Ltd., 1997(3) RLW Raj. 1552 to contend that punishment of removal of the petitioner from service is shockingly disproportionate to the misconduct found. He submitted that the misconduct in issue being the first incident in the petitioner's service career, a more reasonable view on penalty ought to have been taken by the Disciplinary Authority as also the Appellate and Reviewing Authorities and the petitioner should have been visited with a lesser penalty than the toughest one of removal from service. It was submitted that the Disciplinary and other authorities did not consider at all whether lesser punishment for the misconduct found would have served the ends of justice. Counsel submitted that hence the punishment of removal visited on the petitioner on a solitary misconduct is shockingly disproportionate and also vitiated by non application of mind. Hence it be substituted by a lesser punishment by this court or the matter be remanded with appropriate directions to the reviewing authority. 5. Having heard counsel for the parties and having perused the impugned orders dated 21-5-2010, 6-8-2010 and 28-11-2011, I find no illegality in the same. The report of the Inquiry Officer was fact based. The petitioner was found guilty of the misconduct alleged on evidence on record which remained uncontroverted. It was proved that the petitioner reached duty in a badly inebriated state. That fact was affirmed on a medical examination. The defence of the petitioner, of his suffering a mental disorder leading to the situation was farcical and so found by the inquiry Officer and affirmed all through the ladder of appeal and review. And the finding of misconduct so arrived at has not in any event been impugned in the course of arguments. Only the issue of purported shockingly disproportionate punishment has been raised before the court. Reliance placed by the counsel for the petitioner on the judgment in case of State of Rajasthan v. Duli Chand (supra) and General Secretary Hindustan Zinc Majdoor Union v. Hindustan Zinc Ltd. (supra) is of no avail. Punishment in each case relates to its facts. There cannot be uniformity in punishments in different cases with varied facts. Reliance placed by the counsel for the petitioner on the judgment in case of State of Rajasthan v. Duli Chand (supra) and General Secretary Hindustan Zinc Majdoor Union v. Hindustan Zinc Ltd. (supra) is of no avail. Punishment in each case relates to its facts. There cannot be uniformity in punishments in different cases with varied facts. The legal test is to ascertain perversity in finding of misconduct and shocking disproportionateness in punishment which touches the conscience of the court as being unjust. The Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India, AIR 1996 SC 484 has held that High Court/Tribunal while exercising the powers of judicial review cannot normally substitute its own conclusion of penalty and impose some other penalty. 6. On the facts of the case at hand neither of the two tests are breached. No plausible defence obtained before the Enquiry Officer and Disciplinary Authority for the misconduct committed by the petitioner, a constable. The finding of fact has been arrived at by the Disciplinary Authority, the Appellate Authority and the Reviewing Authority is not even remotely perverse and warrants no interference in a petition under Article 226 of the Constitution of India. Nor is the penalty of removal shockingly disproportionate to the misconduct found. The petitioner was a Constable. A drunk Constable reporting for duty is the grossest misconduct. The sine qua non of the police force is discipline. The petitioner completely undermined it. A liberal view on the matter as prayed for on the quantum of punishment has the potential of causing loss of public confidence in the police force and unraveling the whole organisation to unimaginable public detriment. 7. I am not inclined to hold the punishment visited upon the petitioner for the misconduct of reporting drunken for duty shockingly disproportionate or unjust. No other argument was raised before the court. 8. Consequently, there is no force in the petition. Dismissed.