Surjeet Singh vs Commissioner Of Police & Ors.
2014 Latest Caselaw 3317 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                         Date of Decision: 24.07.2014

%      W.P.(C) 4241/2014 and C.M. No. 8532/2014
       SURJEET SINGH                                       ..... Petitioner
                          Through:      Mr. Yasir Arafat, Advocate

                          versus

       COMMISSIONER OF POLICE & ORS.        ..... Respondents

Through: Ms. Bandana Shukla, Advocate

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. The petitioner has preferred this writ petition under Article 226 of the Constitution of India to assail the order dated 04.07.2011 passed by the Central Administrative Tribunal (CAT/ Tribunal) in O.A. No.2012/2010, whereby the Tribunal has dismissed the aforesaid application of the petitioner. The petitioner had preferred the said original application to assail the inquiry report dated 01.10.2009, the disciplinary authority's order dated 15.12.2004 - imposing penalty of dismissal from service on the petitioner, and the order of the appellate authority dated 19.04.2010, rejecting the petitioner's representation.

2. The petitioner, while serving as a Head Constable with the respondent, was issued a charge sheet. The gravamen of the charge was that while the petitioner was deployed on duty as I/C Jail Van and he had taken undertrial prisoners to Tis Hazari lock-up, in the afternoon, the petitioner was found missing and could not be traced after searching all around Tis Hazari Courts Complex. The petitioner was carrying with him arms/ ammunitions and wireless set issued from the Kot wireless store. Since the petitioner could not be traced even after a frantic search, he was marked absent vide DD No.23-B dated 01.05.2009. Later on, the petitioner was found moving in Vikaspuri Police Complex under the influence of alcohol. He was got medically examined by Deen Dayal Upadhyay Hospital by S.I. Kadam Singh and the examining doctor opined that he was having smell of alcohol vide MLC No.8304/2009 dated 01.05.2009.

3. On account of the aforesaid, the petitioner was charged with serious misconduct on account of his absenting himself from duty with government arms/ ammunitions and wireless set, and on account of his consuming liquor during duty hours. A detailed inquiry was conducted by the inquiry officer, who examined 8 PWs. He returned findings against the petitioner in his report dated 01.10.2009. The inquiry officer found that upon medical examination at Deen Dayal Upadhyay Hospital, the doctor had opined that the petitioner was having "Smell of Alcohol (+) BAC 42.7mg/100 ml, conscious oriented". Only at around 7 p.m. the petitioner deposited back the items issued to him from the Kot. The entire sequence of events was established in the inquiry. In his defence, the petitioner produced only one defence witness, who stated that he had prescribed some medicine to the

petitioner as he was having cough and cold. However, no record in this respect was produced in the inquiry. The petitioner did not even submit a written defence statement though he was given several opportunities for the same. The disciplinary authority, who accepted the inquiry report, in its penalty order dated 15.12.2009, inter alia, observed as follows:

"I have carefully gone through the findings of the E.O. and other relevant records available on D.E. file. The defaulter H.C. Surjeet Singh, No. 2042/DAP was also heard in O.R. on 27.11.2009 where he pleaded the same thing as he narrated in his written representation against the findings of the E.O. Incharge of a Jail Van is responsible for guards and UTPs boarded in the Van and to thwart any untoward incident during the production duty of UTPs in various Courts and to ensure safe deposition of these UTPs back to the jail, in which the defaulter H.C. Surjeet Singh, No. 2042/DAP had totally failed. During production duty, which is most sensitive and vulnerable duty, he consumed alcohol and absented himself from duties alongwith Govt. Arms, Ammunition and Wireless Set, which is a serious lapse on his part. It might be hazardous to the safe depositions of the UTPs, as in the absence of Incharge, the other guard staff might have faced difficulties in case any untoward incident took place during the production duty. This act on the part of defaulter H.C. Surjeet Singh, No. 2040/DAP is perfidy with the disciplined force like Delhi Police. In view of current security scenario of the country, a police cop is needed to be utmost vigilant in the performance of his duties, in which the defaulter H.C. Surjeet Singh, No. 2042/DAP has failed. The above act committed by the defaulter H.C. Surjeet Singh, No. 2042/DAP has tarnished the image of the department before the eyes of general public. He deserved to be given severest punishment which may teach a lesson to the

other staff and they may dare not to do such grave misconduct. He is found unfit to be retained in the Delhi Police Department. Hence, I, R.N. Meena, Dy. Commissioner of Police, III Bn. DAP, Delhi, is inclined to impose the penalty of dismissal from service and accordingly hereby order to dismiss the defaulter H.C. Surjeet Singh, No. 2042/DAP from service with immediate effect."

4. Before the Tribunal the petitioner contended that his absence was only for 1 hour and 15 minutes for the reason that the petitioner was suffering from cough and cold and he had gone to the lavatory on the first floor of the Tis Hazari Courts to ease himself and he had severe stomach ache. The petitioner claimed that he had, on his own, reached Vikaspuri at 06:00 p.m. by travelling by TSR. The Tribunal rejected the petitioner's submission by observing as follows:

"11. We have considered the aforesaid submissions of the counsel for the applicant as well as the Respondent. Applicant was a Head Constable in Delhi Police and was entrusted with a very important and highly sensitive work. He was in charge of the Jail Van carrying the under trials to the Tis Hazari Court. He was also armed and carrying a wireless set. Therefore, he is not expected to be away from his duty place without proper prior permission of his Superior Officer or at least with information of his colleagues on duty. Therefore, his explanations that he was suffering from stomach achae and he was in lavatory and he was smelling alcohol because he had taken phensedryl containing alcohol are of no relevance. Therefore, his misconduct of absenting himself from duty with government arms, ammunitions and wireless cannot be condoned."

5. The submission of learned counsel for the petitioner before this Court is also on the same lines as urged before the Tribunal. While hearing writ petition under Article 226 of the Constitution of India, this Court is sitting in judicial review over the orders passed by the Tribunal. It is not for this Court to examine the evidence with a view to ascertain the guilt or innocence of a delinquent officer. This Court is not sitting in appeal over the finding returned by the Inquiry Officer; the disciplinary authority, or the appellate authority. It is evident that the petitioner has been proceeded in accordance with the Delhi Police (Punishment & Appeal) Rules, 1980 and no infirmity in the conduct of the inquiry proceedings, or disciplinary process has been pointed out by the petitioner. It also cannot be said that the findings returned against the petitioner are bereft of evidence, or contrary to the evidence. The charges proved against the petitioner are sufficiently serious to warrant the punishment of dismissal from service and it cannot be said that the punishment imposed is highly disproportionate to the proved misconduct, i.e. such as to shock the conscious of the Court, or which betrays a sense of injustice being inflicted upon the petitioner. The police is a disciplined force and it constitutes serious misconduct for an officer to vanish - even for some time, with arms, ammunition and wireless set during working hours, without any plausible justification, and to consume alcohol while on duty and while handling arms, ammunition and wireless set.

6. Learned counsel for the petitioner has lastly submitted that the petitioner has rendered over 20 years of service with the respondent and his dismissal from service would result in denial of pensionary benefits to him. Learned counsel has submitted that the case of the petitioner should be

considered, at least, for grant of compassionate allowance under Rule 41 of the CCS (Pension) Rules.

7. For the above reasons, this Court is of the opinion that even though there is no infirmity in the impugned order, at the same time, the petitioner's case may be appropriately considered in terms of Rule 41 of the CCS (Pension) Rules in the light of the law declared in that regard, especially as declared in the judgment of the Supreme Court in Mahinder Dutt Sharma Vs. Union of India & Others, Civil Appeal No. 2111/2009 decided on 11.04.2014.

8. In case the petitioner makes a representation for compassionate allowance under Rule 41, the same should be considered in the light of the law declared by the Supreme Court as expeditiously as possible and preferably within six weeks of receipt of such representation, and the decision be communicated directly to the petitioner.

9. The petition is dismissed but subject to the above directions.

VIPIN SANGHI, J

S. RAVINDRA BHAT, J

JULY 24, 2014 B.S. Rohella