Delhi High Court

Om Prakash Rai, Ct./Dvr. vs Union Of India & Ors. on 12 December, 2011

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+      WP(C) No.8063/2011 & CM Nos. 18170/2011 & 19570/2011

%                       Date of Decision: 12.12.2011


Om Prakash Rai, Ct./Dvr.                                  .... Petitioner

                     Through Mr. Gopal Singh, Advocate

                                Versus


Union of India & Ors.                                  .... Respondents

                     Through Mr. Himanshu Bajaj,        Central    Govt.
                             Standing Counsel


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has challenged the order of dismissal dated 4th

November, 2006 passed by the Disciplinary Authority dismissing the

petitioner from service pursuant to a departmental inquiry conducted

against him. The charges against the petitioner were that he had

committed an act of remissness of duties in his capacity as a member of

the CRPF punishable under Section 11 (1) of CRPF Act, 1949 by

consuming liquor on 21st June, 2005 when he was on duty at G/113

Chedima and while returning back he had driven the vehicle

Registration No.DIL-1133 TATA Truck 3/5 Tonner and that he drove the

said Truck in a rash and negligent manner and at high speed resulting

in the said vehicle falling into a sloppy ditch 30 ft. down at about 1445

hours and thus causing heavy damage to the vehicle and the Govt.

property and causing injuries to the escorting party travelling in the

said ill-fated vehicle.

2. The appeal filed against the order of the dismissal dated 4th

November, 2006 was dismissed by the Appellate Authority, Inspector

General, CRPF, Southern Sector, Hyderabad by order dated 25th April,

2008 and the revision petition dated 29th January, 2010 was dismissed

by the Director General, CRPF by order dated 30th September, 2010.

3. The petitioner has challenged the orders dated 4th November,

2006, 25th April, 2008 by the Appellate Authority and the order dated

22nd November, 2010 intimating to the petitioner that his revision

petition had been considered and rejected by the Director General,

CRPF by order dated 30th September, 2010, therefore, his application

for review by the Director General against the order dated 30th

September, 2010 cannot be entertained and therefore dismissed the

same.

4. The petitioner alleged that on 21st June, 2005 he was posted at A-

113 Bn., CRPF Zabza Kohima, Nagaland. According to him, though the

departmental inquiry was conducted against him on the charge that on

the said date he had consumed liquor at G/113 Chedima and had

driven the vehicle under the influence of alcohol, however, the medical

report relied on by the respondents was full of over-writings and

cuttings and no proper blood test and urine test was conducted to show

that the petitioner had consumed liquor. He also contended that he

has been dismissed by the Disciplinary Authority without sufficient

evidence before him and the order of the dismissal in the facts and

circumstances is vitiated.

5. The petitioner also asserted that on 21st June, 2005 the Company

Commandant had instructed him to carry out his work to T. Josh, who

was acting as quarter master in the company and the petitioner was

instructed to move towards A/113 Bn. According to him, at that time it

was raining and the road was full of fog which had reduced the visibility

to very low. The petitioner has contended that he was driving the vehicle

slowly and he was about to reach near E/9 Assam Rifles when suddenly

a Maruti Van came from the opposite direction and in order to save

collision with the Maruti Van which had come from the wrong side, he

instantly applied break resulting in the skidding of vehicle and hitting

the mile stone after which it fell in the ditch. Due to the accident the

petitioner and the other personnel in the vehicle suffered certain

injuries.

6. During the departmental inquiry, seven witnesses were examined

by the department and the petitioner was given adequate opportunity to

defend himself in compliance with the Rules and Regulations, however,

the petitioner was dismissed by order dated 4th November, 2006.

7. The petitioner has challenged his dismissal, inter-alia, on the

ground that the order of dismissal has been passed on irrelevant

considerations and against the evidence; that none of the witnesses had

deposed that the petitioner had consumed liquor and also that the

respondents failed to consider that the petitioner had driven the vehicle

up to a distance of 20-25 Kms. and had he been under the influence of

alcohol, he could not have driven the vehicle to such a distance. The

petitioner also blamed the wear and tear in the truck tyre which

resulted into skidding as the petitioner was trying to save the collision

with the Maruti Van which had come from the wrong direction.

8. Learned counsel for the petitioner mainly emphasized that the

medical certificate showing that the petitioner was under the influence

of alcohol had not been proved and there was no evidence to infer that

the petitioner was under the influence of alcohol and consequently, the

findings of the Inquiry Officer and the Disciplinary Authority are based

on no evidence and are liable to be quashed. The learned counsel also

placed reliance on a decision of the Central Administrative Tribunal,

titled as „Surender Singh-III, Constable of Delhi Police v. Govt. of NCT of

Delhi‟, MANU/CA/0012/2009, holding that in the instant case the

certificate produced by the Delhi Police of the doctor from R.M.L.

Hospital only revealed that Surender Singh, Constable, was smelling of

alcohol and in the medical certificate nothing had been recorded against

the columns like „pupil, gait and speech‟ and consequently, it was held

that on the basis of such medical examination it could not be

conclusively held that the delinquent was under the influence of alcohol

or had consumed alcohol. In the present matter, the Inquiry Officer

after considering the evidence had held as under:-

"4. I have carefully gone through the Departmental Enquiry proceedings, the evidence on record, the report of the EO and the statements recorded in the COI ordered into the incident. As per proceedings of COI, Ct./Dvr. Om Prakash Raj is familiarized with the area and as well as men in the area where G/113 Bn. was located. While coming to G/113 Bn., said Ct./Dvr. Procured meat and handed over it to the Store Man of SSB, i.e. No.91851000 HC/GD Prasad Minj of F/17 Bn., SSB, to prepare lunch and forced him to arrange liquor. Ct./Dvr. Om Prakash Rai and HC/GD Jose.T i.e. driver of the vehicle and party Commander-cum-Co-driver had consumed liquor and taken their lunch from 1130 hrs to 1300 hrs. On reaching 3/5 Tonner vehicle of Ct./Dvr. Om Prakash Rai at Naga Hospital where the Inspector Balbir Singh was waiting, both the said vehicles were left for A/113 Bn. Due to heavy traffic at Check Post, Kohima on NH-39, 3/5 Tonner vehicle which was running behind the one Tonner vehicle of Insp. Balbir Singh could not continue to run behind the one Tonner, after crossing check post. Ct./Dvr. Om Prakash Rai was driving the vehicle very fastly and therefore, Ct.Safiqur Rahman sitting inside the cabin, cautioned the driver to go slow. In reply, the vehicle driver Ct./Dvr. Om Prakash Ra has asked the Ct.Safiqur Rahman to keep quite. However, the Co-driver/Party Commander, HC Jose.T did not caution the vehicle driver to drive the vehicle safely at normal speed as he had also accompanied vehicle Driver for consumption of liquor at G/113 Bn, CRPF. While returning on road at about 1345 hrs, at a distance of 8 kms from Kohim and 9

Kms from Unit Hq, the 3/5 tonner vehicle (TATA Truck) driven by Ct./Dvr. Om Prakash Rai came to the right side of the road at a high speed and ultimately fell down into 30 feet ditch."

9. The Inquiry Officer also considered the loss caused to the vehicle

and the amount incurred in the repair of the vehicle as well as the cost

of ammunition lost, which was to be recovered from the petitioner.

Relying on the statement of No.91851000 HC/GD Prasad Minj of F/17

Bn. SSB, it was held that it is apparent that the constable Ct./Dvr. Om

Prakash Rai/petitioner had consumed liquor and taken lunch in the

store room of SSB located near G/113 Bn location. The Disciplinary

Authority also noted that despite the opportunity given to the petitioner,

no witness/evidence was produced by him and therefore by order dated

4th November, 2006 dismissed him from the service. The Appellate

Authority also noted the evidence against the petitioner, especially the

statement made by the petitioner during the court of inquiry where he

had admitted that he had consumed liquor at Chedima. It was also

noted that none of the PWs except HC/GD T.Josh (PW7) had deposed

that at the time of the alleged incident, unexpectedly a Maruti Van had

come from the wrong side and in order to save collision with the said

Maruti Car, the petitioner had turned the vehicle towards the right side

resulting in the said accident.

10. Though the petitioner did not produce the copy of the order dated

30th September, 2010 dismissing his revision petition and has only

produced the copy of the letter dated 22nd November, 2010 intimating

the petitioner that his application for review cannot be considered by

the Director General since he cannot review his own order. The revision

petition of the petitioner had been dismissed by order dated 30th

September, 2010. The Director General while dismissing the revision

petition had also held that from the statement of Sh.B.S.Dara, 2-I/C

(Addl. PW-1) and Exhibit 6, it was apparent that the petitioner was

under the influence of alcohol at the time of accident. Reliance was also

placed on Exhibit 5, report of motor vehicle Inspector, Kohima holding

that there was no technical defect in the vehicle as also the statement of

the SI M.M. K Puspagandhan (PW2) who disclosed that the road at the

side of the accident was very wide and vehicles coming from the

opposite side were easily visible.

11. This cannot be disputed that the finding of the disciplinary

proceedings should be based on some cogent and reliable evidence to

prove the charge, although the charges are not required to be proved

like a criminal trial i.e. beyond all reasonable doubts. The Disciplinary

Authority, on analyzing the evidence and documents, is to arrive at a

conclusion that there is a preponderance of probability in favour of

establishment of the charge on the basis of the material on record.

While doing so, the Disciplinary Authority cannot take into

consideration any irrelevant fact, nor can it refuse to consider the

relevant facts. Assumptions cannot be made by the Disciplinary

Authority, nor can the burden be shifted, nor can the relevant

testimonies of the witnesses be rejected only on the basis of the

surmises and conjectures, nor can he enquire into an allegation with

which the charged officer had not been charged with.

12. In exercise of its jurisdiction under Article 226 of the Constitution

of India, it has always been the discretion of the High Court to interfere

or not to interfere depending upon the facts and circumstances of the

case. In Sangrila Food Production Ltd. & Anr. v. Life Insurance

Corporation of India & Anr., (1996) 5 SCC 54, it was held that the court

in exercise of its jurisdiction can take cognizance of the entire facts and

circumstances of the case and pass appropriate orders to give a party

complete and substantial justice. The jurisdiction of the High Court, in

exercise of its extraordinary jurisdiction, is normally exercisable keeping

in mind a principle of equity. Regarding scope of judicial interference, it

was held in (2006) 5 SCC 88, „M.V.Bijlani v. Union of India & Ors.‟, that

judicial review is of the decision making process and it is not the

reappreciation of the evidence. The Supreme Court had held at page 95

as under;-

"It is true that the jurisdiction of the Court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal

trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

13. The learned counsel for the petitioner has contended that the

case against the petitioner is of no evidence, and therefore, though the

High Court cannot take over the function of the Disciplinary Authority,

or sit in appeal on the findings of the Disciplinary Authority and

assume the role of the Appellate Authority, however, since there is no

evidence to support the finding that the petitioner had consumed the

liquor as the medical certificate was not admissible and since the same

was not established, therefore, this Court should interfere and set aside

the extreme penalty of dismissal which is also disproportionate to the

offence alleged against the petitioner. This Court had directed the

learned counsel for the respondents to produce the record of Court of

Inquiry, which was produced and perused by this Court. The witness

No.6, HC/G.D. Prasad Minj, had categorically deposed that the

petitioner had asked for liquor and that even though he had tried to

dissuade him from consuming liquor, he had insisted that the said

witness get the liquor and he had also paid the money to him. He

deposed that he had become friendly with the petitioner as he was

earlier also posted with him, and therefore, he procured the liquor from

outside which was consumed by the petitioner and Constable T.Josh.

During the Court of Inquiry, the petitioner in reply to question No.47

had stated that the alcohol was not brought by him, however, he had

consumed the alcohol which was taken from other persons. In reply to

question No.49 `whether any officer at the site of incident had asked

him that he had consumed alcohol or not‟, the petitioner had replied

that he had told the officer that he had consumed the liquor. In reply to

question No.50 as to where the petitioner had consumed alcohol, he

had stated that he had consumed alcohol at Chedima. The petitioner

had been given right to cross-examine, however, it was never deposed

by him during the Court of Inquiry proceedings that he had not

consumed any alcohol.

14. During the disciplinary proceedings, witness B.S.Dara was

examined on 26th June, 2006 who categorically deposed that the

petitioner had admitted that he had consumed the alcohol after

purchasing the rum from Chedima. Relevant testimony of the said

witness is as under:-

".......................at that time I was standing very near to Ct./Dvr. Om Prakash Rai and talking to him when I felt smell of liquor from the mouth of the driver. I immediately asked from Ct./Dvr. Om Prakash Rai whether he had consumed liquor upon which he immediately refused but when he apprised him of his condition, then he admitted that he had consumed liquor and that he had purchased rum from Chedima and had consumed it."

15. In the circumstances, the plea of the learned counsel for the

petitioner that the Disciplinary Authority has held the charges against

the petitioner on the basis of no evidence against the petitioner cannot

be accepted. On the basis of the evidence before the Disciplinary

Authority if an inference can be reasonably drawn regarding the guilt of

the petitioner, then this Court will not exercise its jurisdiction under

Article 226 of the Constitution of India as an Appellate Authority and

re-appreciate the evidence. Even if this Court on re-appreciation of the

evidence arrives at a different inference, then also the inferences drawn

by the Disciplinary Authority are not to be substituted with the

inferences of this Court. In the circumstances, the plea of the petitioner

that there was no evidence before the respondents establishing that the

petitioner had consumed liquor cannot be accepted. In the medical

certificate relied on by the respondents, the date and time of the

examination is given as 4.30 pm on 21st June, 2005 and regarding the

query whether the petitioner had taken liquor and whether he was

under the influence of liquor, it is stated "Yes". The remark given is

"subject has consumed alcohol, however, only his fine skilled

movements are affected". In the circumstances, it is apparent that the

Disciplinary Authority has not relied solely on the medical certificate in

order to infer whether the petitioner had been under the influence of

alcohol or not. Precedent relied on by the petitioner in the matter of

Surender Singh (supra) is also distinguishable as in the said case it

appears that the only evidence establishing the guilt of the delinquent

officer was the certificate issued by the doctor from R.M.L. Hospital,

however, in the present matter, the petitioner himself had admitted that

he had consumed liquor during the Court of Inquiry proceedings and

the other witnesses also corroborated this fact by deposing before the

Court of Inquiry and before the Inquiry Officer that the petitioner had

consumed alcohol in their presence. In the circumstances, it cannot be

held that the findings of the Inquiry Officer are vitiated being contrary

to the evidence on record or that the Disciplinary Authority has

committed any such error or irregularity which is to be corrected by this

Court in the facts and circumstances in exercise of its jurisdiction

under Article 226 of the Constitution of India.

16. Learned counsel for the petitioner has also contended that the

punishment of dismissal awarded to the petitioner is disproportionate

to the acts imputed against him. Perusal of the record reveals that on

account of misconduct on the part of the petitioner extensive damage

had been caused to the vehicle as well as damage to 9 MM ammunition

which was lost and damage was also caused to the two Magazines of

5.56 INSAS Rifles of Ct./GD Manoj Kumar Bhardwaj and Constable/GD

B.Anand respectively. HC/GD Jose. T also suffered multiple lacerated

injuries on the Rt. Hand and injuries below the knee as well as injuries

to Ct./GD Manoj Kumar, who suffered dislocation of the Lt. side,

besides injury in the eye and chin. Injuries were also caused on the legs

of Ct./GD B.Anand and Ct./GD Safiqul Rahman on account of

misconduct on the part of the petitioner and imputable to him.

17. It has been held by the Supreme Court that the relief granted by

the courts should be legal and tenable from the frame work of law and

should not incur and justify the criticism that the jurisdiction of the

courts tend to degenerate into misplaced sympathy/generosity and

private benevolence. The Supreme Court in Life Insurance Corporation

of India Vs. R.Dhandapani, AIR 2006 SC 615 has held as under:-

"9. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. [See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. MANU/SC/0885/1993 : (1994)IILLJ888SC.]"

18. In the above noted facts and circumstances, the order of

dismissal was passed by the Disciplinary Authority which has been

sustained by the Appellate Authority and the Revisional Authority. No

mitigating circumstances have been pointed out by the learned counsel

for the petitioner which would show in any manner that the

punishment of dismissal awarded to the petitioner is disproportionate

to the misconduct on his part.

19. In the totality of the facts and circumstances, therefore, the

petitioner has failed to point out any such illegality, irregularity or

perversity in the orders of the respondents dismissing him from service

on account of the misconduct on his part which would require any

interference by this Court in exercise of its jurisdiction under Article