Delhi High Court
Shri Raju Kolla vs Union Of India & Ors. on 13 January, 2021
$~S-36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13th January, 2021
+ W.P. (C) 470/2021
RAJU KOLLA ..... Petitioner
Through: Mr. Abhishek Kaushik, Advocate
versus
UNION OF INDIA & ORS. ....Respondents
Through: Mr. Farman Ali, Mr. Syed Husain
Adil Taqvi and Mr. Athar
Farooquei, Advocates for R/UOI
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
ASHA MENON, J: (Oral)
CM No.1216/2021
Exemption allowed, subject to all just exceptions.
W.P.(C) 470/2021 & CM No.1215/2021
1. The petition has been heard by way of video conferencing.
2. The petitioner is an Ex-constable of the Central Industrial Security
Force (for short, 'CISF') and challenges the various orders arising out of
the disciplinary action initiated against him, culminating in his dismissal
from service.
3. The petitioner was posted at the Plant Company, CISF Unit,
NALCO, Damanjodi, Odisha and was assigned duties for the night shift
on 25th September, 2017 from 2100 hours to 0500 hours on 26th
September, 2017 at EIL Store backside. At the time he had reported for
duty to the Control-Room for briefing, he was found to be drunk. He was
medically examined at the NALCO Hospital, Damanjodi where the
doctor observed "Alcoholic Smell, drunken gait, pupil dilated and Speech
Slurred". Consequently, disciplinary action was initiated against him vide
Memorandum dated 20th October, 2017. The two Articles of Charge
framed against the petitioner were as follows: -
ARTICLE OF CHARGE-I
"That, No. 092550403 Constable/GD Raju Kolla of
'Plant' Company, CISF Unit NALCO Damanjodi who was
detailed for night shift duty on 25.09.2017 from 2100 Hrs.
on 25.09.2017 to 0500 Hrs on 26.09.2017 at EIL store back
side was found in drunken condition when he reported for
briefing of night shift duty personnel. This act on the part of
No. 092550403 Constable/GD Raju Kolla tantamounts to
gross indiscipline, unbecoming of a member of Armed
Force of the Union. Hence, the charge.
ARTICLE OF CHARGE-II
"That, No. 092550403 Constable/GD Raju Kolla of
'Plant' Company, CISF Unit NALCO Damanjodi has been
awarded with 01 Major punishment U/R-36 & 06 Nos. of
Petty Punishment under rule 38 of CISF Rules 2001
(Amended Rules 2003) in the past by the disciplinary
authorities for his various misconduct and indisciplined
acts. Yet No. 092550403 Constable/GD Raju Kolla failed to
improve his conduct and remained incorrigible. Hence, the
Charge."
4. After the Inquiry, the Disciplinary Authority/Senior Commandant,
CISF vide order dated 13th March, 2018 directed removal of the petitioner
from service. The petitioner preferred an appeal under Rule 46(1)(ii) of
the CISF Rules, 2001 (as amended in 2003), which was dismissed by the
Deputy Inspector General vide order dated 30th August, 2018. The
petitioner preferred a revision petition, once again under Rule 54(1)(a) of
the CISF Rules, but the same was rejected by the Inspector General vide
the order dated 1st March, 2019. The mercy petition was also dismissed
by the Director General vide order dated 20th August, 2019. Hence the
present petition.
5. Sh. Abhishek Kaushik, learned counsel appearing on behalf of the
petitioner contended that the Disciplinary Authority had not proceeded in
the right manner as the defence of the petitioner had been completely
overlooked as he had explained that he was suffering from spinal problem
and was prescribed heavy medication. The learned counsel also submitted
that the doctor who had recorded the observation in the OPD was never
offered for cross-examination. The learned counsel further submitted that
if this observation of the doctor was to be accepted, then the charge had
been framed erroneously as it should have then read that he was found
smelling of alcohol and not drunk. According to learned counsel,
drunkenness could have been established only with the blood test. Since
there was no blood sample drawn, there was no conclusive evidence that
the petitioner was drunk.
6. The argument of the learned counsel for the petitioner cannot be
accepted in the light of the fact that eight witnesses had been examined
during the inquiry proceedings and their testimonies supported the
observation of the doctor that the petitioner was not only smelling of
alcohol but had a drunken gait. The petitioner did not produce any
evidence to prove his defence that he was under any kind of medication
and that too which resulted in similar effect.
7. With regard to the second charge, the learned counsel for the
petitioner contended that all those punishments meted out to the petitioner
were petty punishments which he could not have challenged because they
were immediately given effect to. Therefore, it was improper for the
Disciplinary Authority to have considered those punishments to establish
that the petitioner was a habitual offender. There is no force in this
argument inasmuch as when the Articles of Charge had been so framed,
referring to the previous punishments, the petitioner could have shown
that they were unjustified and that it was improper to consider him to be
an errant officer.
8. Moreover, from the Articles of Charge, it is clear that a major
punishment had also been imposed upon the petitioner. This is recorded
at page 40 of the e-paperbook and is reproduced hereinbelow for ready
reference: -
"Reduction of pay by two stages from Rs. 28400 to
Rs. 26800 in the pay matrix level-3 for a period of two years
with further direction that he will earn increments of pay
during the period of reduction and that on expiry of this
period the reduction will not have the effect of postponing
his future increments of pay"
9. The learned counsel for the petitioner next contended that the
punishment was disproportionate to the mis-demeanour of the petitioner,
who was only 30 years of age and in his nine years of service with the
CISF had served at Naxalite Prone areas. The learned counsel urged us to
consider these factors and reduce the punishment.
10. The Supreme Court had dealt with the question of proportionality
of punishment in Om Kumar v. Union of India (2001) 2 SCC 386,
Union of India v. G. Ganayutham (1997) 7 SCC 463 and Union of India
v. Dwarka Prasad Tiwari (2006) 10 SCC 388. Quoting with approval it's
previous decision in Dwarka Prasad Tiwari (supra), the Supreme Court
reiterated that the Court would interfere with the punishment imposed
pursuant to disciplinary proceedings only if it was so disproportionate
that it shocked the conscience of the court. The observations are
reproduced below for ready reference: -
"25. In Dwarka Prasad Tiwari, it has been held that
unless the punishment imposed by the disciplinary authority
or the appellate authority shocks the conscience of the
court/tribunal, there is no scope for interference. When a
member of the disciplined force deviates to such an extent
from the discipline and behaves in an untoward manner
which is not conceived of, it is difficult to hold that the
punishment of dismissal as has been imposed is
disproportionate and shocking to the judicial conscience."
11. In the background of the facts of the case at hand, we do not find
that the punishment meted out to the petitioner is disproportionate to his
mis-demeanour. It cannot be overlooked that the petitioner was a member
of a disciplined Force and was actually reporting to duty for a night shift
where he was required to be on high alert and to probably use firearms in
case of necessity. It cannot also be overlooked, as has been recorded in
the Articles of Charge-II, that the petitioner when deployed at the night
shift duty on 7th June, 2017 from 2100 hours to 0500 hours on 8 th June,
2017, at Watch Tower-04, "was found under intoxicated condition with a
liquor bottle inside Watch Tower-04", for which the respondents ought to
have removed the petitioner from service. Rather, the respondents seem
to have given him one chance when they imposed a punishment of
reduction of pay by two stages without cumulative effect as reproduced
hereinabove. Within three months of this incident and within a month of
the imposition of this punishment on 30th August, 2017, the petitioner
reported for duty on 25th September, 2017 for a night shift after
consuming alcohol with unsteady gait and slurred speech. The petitioner
seems to have cocked a snook at the respondents.
12. We thus find no merit in the present petition.
13. Dismissed.
14. The judgment be uploaded on the website forthwith. Copy of the
judgment be also forwarded to the learned counsel through e-mail.
ASHA MENON, J
MANMOHAN, J
JANUARY 13, 2021/s
