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2023 DIGILAW 275 (HP)

Surender Kumar v. State of H. P.

2023-05-18

AJAY MOHAN GOEL

body2023
JUDGMENT : (Ajay Mohan Goel, J.) 1. By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:- i) “That the charge memo AnnexufreP-1, punishment order Annexure P-6 and appellate order Annexure P-8 may kindly be quashed. ii) That the respondents may kindly be directed to reinstate the petitioner in service with all consequential benefits.” 2. Brief facts necessary for the adjudication of the present petition are that a Memo was served upon the petitioner in terms of Annexure P-1, informing him that the Department intended to hold an inquiry against him on the Article of Charges appended therewith. The petitioner was called upon to submit his response thereto within the time frame mentioned in the Memo dated 18.01.2018. The crux of the allegations against the petitioner was that, in the year 2017, when, he was serving as a Driver in the Development Block Rampur, he had violated the orders of the Block Development Officer, dated 26.04.2016, of not consuming liquor on duty and further on 27.04.2017, in the evening hours, he had taken the official vehicle to his residence without permission and had misused the same and had also not filled the Log book. It was further the allegation against the petitioner that on 08.06.2017, he was apprehended in an inebriated position by the Police of Police Station Rampur Bushahr, while driving official vehicle bearing registration No.HP-06C-0137 and when he was subjected to medical test, he was found to be under the influence of liquor. The petitioner denied these allegations in terms of reply filed by him appended with the petition as Annexure P-2. 3. As the Disciplinary Authority was not satisfied with the response of the petitioner, therefore, an Inquiry Officer was appointed, who submitted his inquiry report Annexure P-4. As per the inquiry report, the petitioner was found guilty of consuming liquor while on duty, but, it was further mentioned in the inquiry report that other allegations against the petitioner were not substantiated. After affording an opportunity to put-forth his response to the inquiry report, the Disciplinary Authority, in terms of order dated 24.05.2019 Annexure P-6 imposed penalty of compulsory retirement from service upon the petitioner and his suspension period was ordered to be treated as dies non. The appeal filed by the petitioner also met with the same fate in terms of the order of the Appellate Authority Annexure P-8, dated 02.09.2019. The appeal filed by the petitioner also met with the same fate in terms of the order of the Appellate Authority Annexure P-8, dated 02.09.2019. Feeling aggrieved, the petitioner has filed this writ petition. 4. Learned counsel for the petitioner has argued that the punishment imposed upon the petitioner by the Disciplinary Authority as upheld by the Appellate Authority is not sustainable in the eyes of law because the allegation against the petitioner was never proved in the course of inquiry. Learned counsel argued that the allegation against the petitioner was that on 08.06.2017, he was found driving the official vehicle in an inebriated position by the Police of Police Station Rampur Bushahr at Dakolar, Tehsil Rampur, District Shimla, H.P., but fact of the matter is that on the fateful day, he had taken half day’s leave and was at his house on account of some function from where, he was taken away by the police. He has submitted that as the Department had failed to establish in the course of inquiry that the petitioner was apprehended by the police while driving the official vehicle on the fateful day, therefore, the punishment imposed upon the petitioner by the Disciplinary Authority as upheld by the Appellate Authority was bad in law and the same was liable to be set aside. 5. Learned Deputy Advocate General on the other hand has defended the decision of the statutory authorities and submitted that the petitioner cannot ask this Court to re-appreciate the evidence as the scope of judicial review was not akin to an Appellate Court. He has further argued that as full opportunity was granted to the petitioner to put forth his case in the course of departmental inquiry and as the guilt of the petitioner was duly proved in the course of the inquiry, there is no infirmity in the order passed by the Disciplinary Authority as upheld by the Appellate Authority, because, when it stood proved that the petitioner was found drunk on duty, the penalty imposed upon him by the Disciplinary Authority could not be questioned. Accordingly, it is submitted that the present petition being devoid of any merit, being dismissed. 6. On the last date of hearing, the respondent-State was directed to produce the record of the inquiry, which was duly produced for the perusal of the Court and the same was also perused by the Court. 7. Accordingly, it is submitted that the present petition being devoid of any merit, being dismissed. 6. On the last date of hearing, the respondent-State was directed to produce the record of the inquiry, which was duly produced for the perusal of the Court and the same was also perused by the Court. 7. I have heard learned counsel for the parties and have carefully gone through the pleadings and also the record of the inquiry report. 8. Before proceeding with the case on merit, it is relevant to refer to the following two judgments of the Hon’ble Supreme Court of India:- In B.C. Chaturvedi vs. Union of India & Ors., (1995) 6 Supreme Court Case 749, the Honb’ble Supreme Court has been pleased to hold that judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. Hon’ble Supreme Court has further held that the Court, inter-alia, may interfere where the conclusion or finding reached by the disciplinary authority is based on no evidence and also if the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. In State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 Supreme Court 1723, the Hon’ble Supreme Court has been pleased to hold that there is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 of the Constitution of India to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or; where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution. 9. Coming to the facts of the present case, the Article of cCharge demonstrates that the allegation against the petitioner was that on 08.06.2017, he was apprehended by the Police of Police Station Rampur Bushahr at Dakolar under the influence of liquor while driving official vehicle bearing registration No.HP-06C-0137. 9. Coming to the facts of the present case, the Article of cCharge demonstrates that the allegation against the petitioner was that on 08.06.2017, he was apprehended by the Police of Police Station Rampur Bushahr at Dakolar under the influence of liquor while driving official vehicle bearing registration No.HP-06C-0137. However, a perusal of the inquiry report demonstrates that out of the four witnesses, who were examined by the Department, witness No.1 Pratap Chauhan, Block Development Officer Theog Block had stated that when petitioner Surender Kumar was medically examined on 08.06.2017 at MGMSC Hospital Khaneri, he was on causal leave and he came to know about the incident after he rejoined his duties. Similarly, witness No.2 Rajinder Negi, who was an official of the Development Block Rampur Tehsil stated that on 08.06 2017, he was present in the office and the vehicle was parked in the campus of the office and he had not seen the petitioner in an inebriated condition. Witness No.3 Shiv Ram, Head Constable of Police Station Rampur stated that on 08.06.2017, he alongwith other police officials had accompanied the petitioner from his residence at Dakolar to MGMSC Hospital Khaneri for medical examination. Similarly, witness No.4 Prem Singh, Peon of the Development Block Rampur had stated that he had not seen Surender Kumar driving the official vehicle in a drunken condition nor he had ever misbehaved with any Officers in his presence. Now, none of the witnesses of the Department has proved this fact that the petitioner was in fact apprehended by the police while driving the official vehicle in an inebriated condition. Witness No.3 Shiv Ram, Head Constable has only stated that he took the petitioner for medical examination from his house, which corroborates the case of the petitioner that on the fateful day, he was at his house on account of some function, where, he had consumed liquor and it is from his house that he was taken away by the police for medical examination. These extremely important aspects of the matter have been ignored in totality, both by the Disciplinary Authority as well as the Appellant Authority while imposing major penalty of compulsory retirement upon the petitioner. These extremely important aspects of the matter have been ignored in totality, both by the Disciplinary Authority as well as the Appellant Authority while imposing major penalty of compulsory retirement upon the petitioner. Both the authorities have erred in not appreciating that it was not proved on record that the petitioner was found intoxicated during office hours while driving official vehicle, in terms of the allegation, which was levelled in the Article of Charges. When the allegation against the petitioner specifically was that on the fateful day, a police party apprehended him in an intoxicated condition while driving the official vehicle, the onus was upon the Department to have had proved this fact. However, the Department miserably failed to prove that the petitioner was apprehended by the police on the fateful day while driving the official vehicle in a drunken condition. Simply because the petitioner was found under the influence of liquor on the fateful day was not enough for having imposed a major penalty upon him and unless the foundation of the case of the Department was duly proved, in fact, no punishment could have been imposed upon the petitioner. Therefore, the findings, which have been returned by the Disciplinary Authority as well as the Appellate Authority, in terms whereof, a major penalty stood imposed upon the petitioner are perverse findings, which call for interference under Article 226 of the Constitution of India, as the same are not borne from the record of the departmental inquiry. This is for the reason that in the present case, the authorities have disabled themselves from reaching a fair decision as the reasons, which have been assigned by both the Disciplinary Authority as well as the Appellate Authority while imposing major penalty upon the petitioner and upholding the order are extraneous to the evidence and they have allowed themselves to be influenced by irrelevant consideration and here the conclusion arrived at by both the authorities is wholly arbitrary and capricious and no reasonable person could ever had arrived at the conclusion as has been arrived by the said authority. 10. 10. Accordingly, in view of the findings returned hereinabove, this petition is allowed and order dated 24.05.2019, passed by the Disciplinary Authority in terms whereof, major penalty was imposed upon the petitioner and order dated 02.09.2019, passed by the Appellate Authority, in terms whereof, the order passed by the Disciplinary Authority was upheld are quashed and set aside. It is further ordered that the period for which, the petitioner was placed under suspension, be treated to be in service, for all intends and purposes. Pending miscellaneous application(s), if any, also stand disposed of.