Vijay Kumar Singh vs State Of U.P. And Others
2018 Latest Caselaw 3881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- WRIT - A No. - 3084 of 2011
 

 
Petitioner :- Vijay Kumar Singh
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- D. B. Yadav
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Ajit Kumar,J.

1. Heard learned counsel for the parties.

2. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 07.12.2009 passed by 4th respondent imposing a major penalty lowering down the petitioner's pay  scale to three stages below, exercising power under Regulation 4(1)(a)(3) of the U.P. Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter to be referred as 'Rules, 1991') and also the order dated 06.07.2010 passed in appeal confirming the penalty by the 3rd respondent and also the revision rejected by the 2nd respondent by order dated 05.12.2010.

3. The petitioner, who was posted at the relevant point of time as Assistant Special Information Officer in Local Intelligence Unit, was served with a charge sheet dated 24.08.2009 with the following charges:

"When you were posted in the year 2009 in the Local Intelligence Unit, as Assistant Special Information Officer, at around 22.30 hours in the night at 08.01.2009 you were creating nuisance under the influence of alcohol and on information being given to the police station Sigra, you were arrested under Section 34 of the Police Act and you got medically examined. In medical examination you were found in intoxication situation, your conduct has damaged the reputation of police and therefore, you are guilty of misconduct."

4. The petitioner submitted his detailed reply to the charge sheet and denied the charges and further reiterated emphatically in his reply that he was not medically examined as no blood sample was taken to confirm that he was in a drunken state. The Disciplinary Enquiry Committee, as constituted, has done enquiry in the matter and examined the doctor namely Dr. Vijay Shanker Tripathi, an Emergency Medical Officer posted at S.S.P.G. Hospital/ Divisional Hospital, Kabir Chaura, Varanasi on the fateful day and the other witnesses were examined on behalf of the prosecuting department and in the Enquiry, which was duly held by the Enquiry Officer, it was found the petitioner was guilty of the charges and accordingly it made a recommendation that appropriate penalty be imposed upon him as per rule 4(1)(a)(3) of Rules, 1991. Show cause notice was issued to the petitioner on 28.10.2009 as to why action may not be taken as per rule (1)(a)(3) of Rules, 1991 as he was found guilty of the charge in the Enquiry.

5. The petitioner, in the reply to the show cause notice, assailed the findings of Enquiry committee as totally perverse more especially when the doctor, who was produced by the prosecuting department and was examined, had himself stated before the Enquiry Officer that he did not conduct any medical examination/ clinical examination of the delinquent employee and had only stated in the certificate that he smelled of liquor from the mouth of the delinquent employee but at the same time he reported that the employee was not in drunken state or intoxicated. In his reply, therefore, the petitioner asserted before the disciplinary authority that the charges cannot be said to be proved apart from the other oral evidence that he had led and also the documentary evidence of Ayurved doctor namely Dr. Ajit Singh who had given a certificate that the petitioner was under his treatment. The delinquent employee had clearly stated that he had also taken medicine while under treatment on the fateful day as well. However, disciplinary authority did not find the reply of the petitioner to be  satisfactory and rejected the same imposing the major penalty of downgrading the petitioner three grade in pay scale to what he was drawing at the time of imposition of penalty. The order came to be confirmed in the appeal by Deputy Inspector General of Police under the order dated 25.12.2009 against which the revision has also come to be dismissed.

6. Learned counsel for the petitioner has vehemently argued that a charge which is levelled is of such nature which could have been proved only through medical examination in the sense that some sample of blood ought to have been taken to ascertain whether the petitioner was really under the influence of alcohol or not. He further states that even no Medical appliance was used to examine as to whether petitioner was in an intoxicated state except by oral appearance as what the doctor had himself admitted in his testimony before the Enquiry Officer. He has further stated that the doctor having himself admitted that the petitioner was not intoxicated, the charge itself fell on the ground. Apart from this, the petitioner has also taken the Court to the enquiry officer's report in which the oral testimony of the witnesses of the prosecution finds discussion, in which the person who is claimed to be homeguard and who was claimed to have accompanied the petitioner on the fateful day at the relevant point of time has come to deny this fact before the Enquiry Officer.

7. Learned counsel for the petitioner has also asserted that since the incident had taken place in front of Hotel Siddharth, the Manager of Hotel Siddharth was a crucial witness and he himself has stated that he could not say as to whether the petitioner was in a drunken state or not. All that he saw that the petitioner was trying to intervene in the ongoing dispute between certain persons, who were in drunken state, but the police came suddenly on the spot and took the petitioner also along with other persons who were fighting.

8. Per Contra, the argument advanced by learned Standing Counsel is that the Enquiry was thoroughly conducted in the matter and all the procedure was duly followed. It is also argued on behalf of learned Additional Chief Standing Counsel that the findings returned by the Enquiry Officer is cogent and convincing based on sufficient material evidence on record and the disciplinary authority having given its thoughtful consideration to the reply of the petitioner in response to the enquiry report and having come to conclude that the petitioner being a member of disciplined force should not have behaved as had come to be exposed even by taking to the statement of doctor; it therefore, is contended that it is proved that he was at least under the influence of alcohol, may not be intoxicated.

9. Learned Additional Chief Standing Counsel has vehemently argued that in exercise of power under Article 226 of the Constitution, this Court cannot conduct a rowing enquiry over and above the findings of fact recorded to the effect that the petitioner was in fact guilty of the charges. The disciplinary authority having held him guilty of charges and that the appellant authority having confirmed the same and the revision having been rejected the scope of interference of this Court is very limited. 

10. Very recently a Division Bench of this Court in Writ - A No. 2230 of 2014, Shiv Raj Singh v. State of U.P. & Ors decided on 28.03.2018 dealt with similar issue in the light of judgment of Apex Court in Bachubhai Hassanalli Karyan v. State of Maharashtra, 1972 SCC (Cri.) 178, the Division Bench in the said case noticed the argument of learned counsel for the applicant thus:

"Learned counsel for the petitioner has also submitted that medical report of doctor with regard to consumption of liquor is not based on blood and urine sample and only physical inspection of the petitioner was carried out which could not be relied upon while imposing the major penalty of dismissal. Otherwise also report to the some extent, is in favour of petitioner with the finding that the person has consumed alcohol but was not in intoxicated state. For ready reference, part of medical report is being quoted, herein, below;

"On Examination-

-Person is fully conscious

-Talking normally

-Behaves normally

-Eyes normal, Reactive to light

-Can walk on straight line

-Smell of breath Alcoholic

Opinion- Person has consumed Alcohol but not in intoxicated state."

On being confronted as to whether blood and urine sample was taken for medical examination or not, learned Standing Counsel could not show from the record that report was given after test of urine and blood sample. Therefore, on such medical report, no major punishment could be awarded."

11. Having considered the argument and relying upon the decision of Apex Court, Division Bench has finally held thus:

"Full Bench of Apex Court in the matter of Bachubhai Hassanalli Karyani (supra) has held that without urine and blood test, no conclusive report could be given for consumption of alcohol.

If the argument of learned Standing Counsel that petitioner was not found at the place of his duty and found before Hospital after taking liquor is accepted, even though no case is made out for punishment of dismissal of petitioner as it is disproportionate to the alleged offence committed by him.

In view of aforesaid facts and law discussed herein above, the writ petition succeeds and is allowed. The orders dated 6.8.2009, 5.12.2009 and 10.9.2010 passed by Superintendent of Police, Lalitpur, Deputy Inspector General of Police, Jhansi Range, Jhansi and Additional Director General of Police, Telecommunication, U.P. Police Radio Headquarters, Lucknow respectively are hereby quashed with liberty to State to proceed in accordance with law to award punishment other than dismissal from the service. Respondents are directed to permit the petitioner to join his duty and pay him salary on month to month basis."

12. In the present case, I find that the doctor who had examined the applicant belongs to Divisional Hospital, Kabir Chaura, Varanasi, had clearly indicated that the petitioner was not in an intoxicated state. The proper course ought to have been to get the blood and urine examination of the delinquent employee so as to clinically establish that the petitioner had taken liquor and that on that particular point of time he was under influence of liquor beyond all doubts. Further, it has come on record during enquiry that the petitioner had withdrawn the money from Automated Teller Machine (ATM) and had purchased the medicines prescribed by an Ayurvedic Physician Dr. Ajit Singh. Dr. Ajit Singh could not be produced because of ill health but the petitioner had produced the letter of said physician which should have been admitted in evidence. It has also come to be recorded that the petitioner was in fact under treatment of Dr. Ajit Singh since 2008. In the opinion of the Court, by no mean on a mere appearance of a person it can be ascertained that such a person had taken liquor. It is thus not justified to hold him under the influence of liquor or that he was intoxicated. The Manager of Hotel Siddharth, Sri Abhinav Sahi who was present on the spot was also examined and he denied to admit that petitioner was under influence of liquor. The store manager of Hotel Siddharth, Sri Chunnu Singh was also examined and he stated very clearly that Vijay Kumar Singh was no involved in the scuffle going on the street but he had come forward to stop the ongoing fight and those who were under the influence of liquor had also started fighting with him.

13. In the case of Bachubhai Hassanalli Karyan (supra) the Apex Court in paras 4 and 5 has held thus:

4. The learned Counsel contends that the heavy sentence has been imposed on the appellant because he was found to have been drunk on that night. He says that Dr. Kulkarni, who examined the appellant based his conclusion merely on the facts that the appellant's breath was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. The doctor had admitted that a person, placed in the circumstances in which the appellant was put as a result of the accident, would be under a nervous strain and his gait might be unsteady The doctor had also admitted that a person could smell of alcohol without being under the influence of drinking No urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis, no report of the analysis produced by the prosecution.

5. It seems to us that on this evidence it cannot be definitely held that the appellant was drunk at the time the accident occurred.

14. Besides above, the argument that cope of interference by this Court in exercise of power under Article 226 of the Constitution is only based on the principle that enquiry is not vitiated and not in those cases where even charge is not proved and yet the enquiry committee constituted has held a delinquent employee to be guilty of the charge. A perverse finding even by enquiry officer is always subject to judicial review.

15. In view of the above legal position and statements, as have come to be recorded in the enquiry report, I do not find any justification to hold that the findings returned by the Enquiry Officer are sound on the charge that petitioner was under the influence of liquor on the relevant date and relevant point of time. Following the principles as laid down by Division Bench (supra) considering the Apex Court judgment, I hereby set aside the order impugned of punishment dated 07.12.2009 and also the appellate dated 16.07.2010 passed in appeal confirming the penalty dated 06.07.2010 and the order dated 05.12.2010 passed in revision, as I find that the findings returned by the Enquiry Officer are perverse and the very ground on the basis of which the petitioner was charge sheeted did not find support from any substantial piece of evidence.

16. Consequences to follow.

17. For the reasons aforesaid, the writ petition stands allowed.

Order Date :- 22.11.2018

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