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2018 DIGILAW 244 (ALL)

MAHIPAL v. STATE OF U. P.

2018-01-31

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Satyendra Narayan Singh, learned counsel for the petitioner as well as Sri Rakesh Kumar Mishra, learned Standing Counsel appearing for the State respondents and perused the record. 2. Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself. 3. Present petition has been filed challenging the impugned order dated 9.5.2013 passed by the respondent No. 2 and the order dated 30.8.2012 passed by the respondent No. 3 and the order dated 1.8.2011 passed by the respondent No. 4 respectively. 4. By the impugned order dated 1.8.2011 passed by the respondent No. 4, the petitioner was dismissed from service under Rule 4 (1) (ka) (i) read with Rule 14 (1) (ka) (i) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991. Against the same, appeal filed by the petitioner was dismissed vide order dated 30.8.2012 and the revision filed by the petitioner was also dismissed vide order dated 9.5.2013. All such orders are under challenge in the present petition. 5. Brief facts of the case are that the charge against the petitioner was that while he was posted in 24th Battalion PAC Moradabad, on 13.8.2010 at about 18:30 he, under the influence of liquor, misbehaved with the Company Commander Mr. Govind Singh and without registering his entry of his departure and without reporting to the Battalion Head Office, he remained absent and on medical examination it was found that he had consumed liquor. A charge-sheet was given to the petitioner, in reply whereof he admitted the charges in writing and also gave in writing that he does not want to cross-examine any person. Enquiry proceedings were conducted and after consideration of documentary evidence on record as well as recording statement of departmental witnesses, the charges levelled against the petitioner were found to be proved. Based on the aforesaid, punishment order was passed. 6. Submission of the learned counsel for the petitioner is that no opportunity of hearing was given to the petitioner and in any case punishment awarded to the petitioner is disproportionate and excessive. He further submits that the petitioner was not under influence of alcohol though he had taken medicines but has never misbehaved with his superior officer. 6. Submission of the learned counsel for the petitioner is that no opportunity of hearing was given to the petitioner and in any case punishment awarded to the petitioner is disproportionate and excessive. He further submits that the petitioner was not under influence of alcohol though he had taken medicines but has never misbehaved with his superior officer. During the course of argument, it was submitted that the petitioner had denied the charges and has submitted his reply to the show-cause notice that he had taken some medicines because of his throat infection and has not consumed liquor. Much emphasis was placed on the argument that the petitioner had never accepted his charges. 7. Per contra, learned Standing Counsel appearing for the State respondents has supported the impugned orders and has also drawn the attention of previous misconduct of the petitioner as noticed in the enquiry proceedings. 8. I have considered the rival submissions and perused the record. 9. On perusal of the record, I find that the acceptance of charges given by the petitioner in writing is at page 26 of the counter-affidavit as Annexure 3 to the counter-affidavit and is mentioned in paragraph 8 of the counter-affidavit. In paragraph 8 of the rejoinder-affidavit the same has not been disputed and it is stated that the paragraph 8 of the counter-affidavit is matter on record and reply to show-cause notice has also been given by the petitioner in detail. Therefore, this letter is not in dispute and has rightly been relied on by the Enquiry Officer in its enquiry report. Even otherwise, the enquiry was conducted in a proper and legal manner and there is no infirmity in the enquiry report. Enquiry report also reflects that the petitioner is habitual of misbehaving with superior and was found guilty of consuming liquor on earlier occasions also for which he was punished. In the medical examination, an opinion has been given that the petitioner has taken alcohol like substance and smell of alcohol is coming from his mouth and he is not under the toxic effect of alcohol but he can manage himself. Under such circumstances, it is proved that at the time when the incident had taken place, the petitioner was under influence of alcohol and all findings of fact are not perverse and requires no interference by this Court. 10. Under such circumstances, it is proved that at the time when the incident had taken place, the petitioner was under influence of alcohol and all findings of fact are not perverse and requires no interference by this Court. 10. I have considered identical submissions in another matter being Writ-A No. 61116 of 2011 (Satya Prakash Singh v. State of U.P. and others). Relevant paragraphs whereof are quoted as under: “The submission of the learned counsel for the petitioner is that the petitioner was not medically examined and his blood and urine test was not carried out to ascertain that he had taken liquor or not. He submits that the punishment of dismissal from service is excessive. He further submits that there was no eye-witness of the incident. A perusal of record clearly indicates that a finding of fact has been recorded that an incident had taken place and the petitioner had indulged in scuffle, while he was under intoxication. All these findings of fact cannot be looked into under Article 226 of the Constitution of India. However, even a glance over the enquiry report clearly demonstrates that the incident that had taken place is not in dispute and the petitioner had tried to certify the question of intoxication by saying that he was under treatment of a Homoeopathic doctor and was having medicines containing alcohol and that he had consumed medicine in a little excessive quantity. The medical examination of the petitioner was carried out at the Primary Health Centre, Gangapur, Varanasi and the doctor had certified that foul smelling was coming from the petitioner and he was also injured. Dr. B.N. Shukla who was treating the petitioner and was produced by the petitioner had stated that smell of alcohol exists about 10 -15 minutes after consumption of medicines. Undisputedly, it cannot be said that such medicine was taken by the petitioner on the spot of the incident whereas he was also taken to the Primary Health Centre and in between considerable time must have expired but still foul smell was coming from the mouth of the petitioner, which according to his own witness Dr. B.N. Shukla, Homoeopath, smell should not come after 10 -15 minutes, even if the version of the petitioner is taken to be correct that he had consumed homoeopathic medicine and was smelling foul for this reason. B.N. Shukla, Homoeopath, smell should not come after 10 -15 minutes, even if the version of the petitioner is taken to be correct that he had consumed homoeopathic medicine and was smelling foul for this reason. Under any circumstances, I do not find that the findings recorded by the enquiry officer are so perverse in nature which may warrant interference by this Court. The petitioner is a member of disciplined force and as such for such misconduct I do not find that any interference to the quantum of punishment is required by this Court. Reference may be made in this regard to a judgment rendered by the Hon’ble Apex Court in the case of Samar Bahadur Singh v. State of U.P. and others, 2011 (9) SCC 94 , wherein a constable was found guilty of consuming liquor, the Hon’ble Apex Court refused to interfere. A reference may also be made to a judgment in the case of Union of India v. P. Gunasekaran, 2015 (2) SCC 610 . Paragraphs 19, 20 and 21 of the judgment in the case of P. Gunasekaran supra are quoted as under: “19. The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India. 20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the Court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values. 21. Integrity according to Oxford dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values. 21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749 , Union of India and another v. G. Ganayutham, 1997 (7) SCC 463 , Om Kumar and others v. Union of India, 2001 (2) SCC 386 , Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, 2007 (4) SCC 669 , Coal India Limited and another v. Mukul Kumar Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai Metropolitan Water Supply (supra).” Relevant paragraphs 5, 6 and 8 of the judgement in Samar Bahadur Singh (supra) are quoted as under: “5. Counsel appearing for the Appellant has submitted before us that a criminal case was also instituted for the aforesaid incident in which he was acquitted and therefore, in the departmental proceeding also which was initiated he should also have been acquitted and the same should have been allowed to be ended in his favour. He further submits that in any case it has come in evidence that the Appellant was advised to take medicine which he had taken and, therefore, there was some smell of liquor from the medicine when a medical check-up was done. Relying on the same, counsel submits that the entire charge is concocted and therefore, he is required to be held not guilty of the charge. The next submission of the counsel appearing for the Appellant is that the punishment given to the Appellant is disproportionate to the charges levelled against him. 6. Relying on the same, counsel submits that the entire charge is concocted and therefore, he is required to be held not guilty of the charge. The next submission of the counsel appearing for the Appellant is that the punishment given to the Appellant is disproportionate to the charges levelled against him. 6. We have considered all the aforesaid submissions in the light of the records that are available with us. The medical report which is placed on record indicates that the Appellant had consumed alcohol, but he was not intoxicated. The Appellant was missing from the headquarters on 27.10.1991 from the morning and he was caught in the case registered under Section 392 I.P.C. in the evening. The Appellant wishes to make a defence that he was advised to take medicine but the prescription which is placed in the departmental proceedings does not indicate that any medicine was prescribed in that prescription. The Appellant was arrested in the criminal case in connection with stealing of a bottle of foreign liquor and even during that time he had consumed alcohol prior to the incident. These facts have been brought out in the inquiry proceedings initiated against him in which the Appellant did not participate. Therefore, whatever allegations have been brought against him, have been proved by placing cogent materials on record, which go unrebutted due to his absence in the proceedings. We also find that the Appellant has been charged on the ground of negligence, dereliction of duty and consuming liquor. The aforesaid facts are found proved in the departmental proceedings. 8. Now, the issue is whether punishment awarded to the Appellant is disproportionate to the offence alleged. The Appellant belongs to a disciplinary force and the members of such a force is required to maintain discipline and to act in a befitting manner in public. Instead of that, he was found under the influence of liquor and then indulged himself in an offence. Be that as it may, we are not inclined to interfere with the satisfaction arrived at by the disciplinary authority that in the present case punishment of dismissal from service is called for. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference.” 11. The punishment awarded, in our considered opinion, cannot be said to be shocking to our conscience and, therefore, the aforesaid punishment awarded does not call for any interference.” 11. In view of the judgement referred to above particularly the judgement of Hon’ble Apex Court in the case of Samar Bahadur Singh (supra) wherein a constable was found guilty of consuming liquor, the Hon’ble Apex Court refused to interfere, I do not find any legal infirmity in the orders impugned herein and there is no good ground to interfere with the same. 12. This writ petition lacks merit and is, accordingly, dismissed.