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Judgment
Sudhanshu Dhulia, J.
This petition was filed by Mr. Shyam Singh Mehra, who was a Constable in the Police Armed Constabulary (from hereinafter referred to as the "PAC") in Uttarakhand and was awarded a major penalty of dismissal from service vide order dated 04.10.2005. He passed away during the pendency of the present writ petition and has been substituted by his wife.
While the present petitioner's husband was working as a Constable in PAC and was posted on guard duty he did not report for the guard duty, rather he was found in intoxicated state in his bed. Thereafter he was taken to the hospital and the doctor who examined him gave the following report:-
"Examined Shri Shyam Singh Age about 42 years S/o Late Shiv Raj Singh R/o 46 PAC Rudrapur at 5.15 PM on 18/02/2005 at JLN Hospital Rudrapur.
M/I- Old Scar mark on right leg.
B/B HC Rajendra Singh.
46 PAC Rudrapur
O/E Patient conscious
Breathing Alcoholic
Gait Alcoholic
Pulse- 78/min BP-120/86 mmhg
Pupil Semi-dilated & reactive
Speech- Slurred.
Opinion- He has consumed alcohol like substance but he is not under toxicity."
The petitioner's husband was charge-sheeted with the following charge:-
That at 16.00 hours in the evening of 18.02.2005, your duty was on PAC Quarter Guard Duty, but you were found absent from the Quarter Guard Duty and on being searched, you were found in your bed in the inebriated condition. On being medically examined, it was confirmed that you had consumed alcohol.
Most of the witnesses supported the case of the prosecution. During the disciplinary proceedings even the Constable admitted that he had done a "mistake", and pleaded that he may be pardoned. The doctor, namely, Dr. R.S. Kunwar, who had examined the Constable at 5.15 pm at JLN Hospital Rudrapur was also examined as a witness and he gave a statement that while he was on the duty in the hospital, the Constable was brought before him, who was medically examined by him and he was found to be in inebriated state and the report to that extent was also prepared by him. There is an evidence to this effect that the delinquent constable did not report on the duty on the fateful day, and the reason for that was that he was under influence of liquor. The disciplinary authority while awarding the punishment had also examined the past record of the delinquent constable and came to the conclusion that in his service record there were adverse entries and there were also previous cases when he reported late on duty and he also remained absent on more than one occasions.
Under these circumstances, the punishment which was awarded to the delinquent Constable (petitioner's husband) by the Disciplinary Authority on the report of the Assistant Commandant, PAC was dismissal from service vide order dated 04.10.2005. Aggrieved, the delinquent Constable filed a statutory appeal before the Inspector General of Police, PAC where he did not find any favour and his appeal was dismissed vide order dated 02.03.2007. Thereafter, he filed a revision before the Additional Director General of Police, Administration which was also dismissed vide order dated 30.08.2007. Aggrieved, the delinquent Constable filed the present writ petition before this Court.
As has already been referred to above, during the pendency of the present writ petition, the petitioner's husband passed away and he has been substituted by his wife. This Court has also been informed by the learned counsel for the petitioner that the delinquent employee has left behind his wife and five children. Out of the five children, at the relevant time, three children were minor.
Heard learned counsel for the parties.
As to the procedure adopted by the disciplinary authority, no fault can be found with the procedure. The delinquent employee was duly served with the charge-sheet. He was examined by the Enquiry Officer and his statements as well as the statements of the witnesses were recorded. The delinquent employee was given the full opportunity to cross-examine the witnesses. In fact there is an admission of the delinquent employee where though he has not categorically admitted that he was under the influence of liquor but he has said that he has done a "mistake", and he may be pardoned. Therefore, though the procedure adopted by the department under the departmental proceeding cannot be faulted and the findings arrived at by the department on the guilt of the delinquent Constable are liable to be sustained. The delinquent employee was under the influence of liquor on the fateful day and the fact that he did not report for his duties are the established facts. Moreover, in a disciplinary proceeding, conviction can be made on the basis of preponderance of probabilities and therefore the findings are correct.
The only question is regarding the quantum of punishment, i.e., the proportionality.
The service condition of the petitioner is governed by the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 which are also applicable in the case of Constables in PAC. Rule 4 defines the punishment, which reads as under:-
"4. Punishment.- (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer, namely-
(a) Major Penalties-(i)Dismissal from service.
(ii)Removal from service.
(iii)Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale.
(b) Minor Penalties-
(i)withholding of promotion.
(ii)Fine not exceeding one months; pay.
(iii) Withholding of increment, including stoppage at an efficiency bar.
(iv) Censure.
(2) In addition to the punishments mentioned in sub-rule (1) Head Constables and Constables may also be inflicted with the following punishments-
(i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty).
(ii) Punishment Drill not exceeding fifteen days.
(iii) Extra guard duty not exceeding seven days.
(iv) Deprivation of good conduct pay.
(3) In addition to the punishments mentioned in sub-rules (1) and (2) Constables may also be punished with Fatigue duty, which shall be restricted to the following tasks :
(i) Tent pitching;
(ii) Drain digging;
(iii) Cutting grass, cleaning jungle and picking stones from parade grounds;
(iv) Repairing huts and butts and similar work in the lines;
(v) Cleaning Arms."
In this case, a major penalty of dismissal from service has been awarded to the delinquent employee.
Under the facts and circumstances of the case and considering the conduct of the delinquent employee, it is only the major penalty which was liable to be awarded and not a minor penalty as is being pleaded by the counsel for the petitioner on the quantum of punishment. There are three major punishments under Rule 4, which are as follows:-
(a) Major Penalties-
(i)Dismissal from service.
(ii)Removal from service.
(iii)Reduction in rank including reduction to a lower-scale or to a lower stage in a time scale.
Therefore, considering that there is no other case in service record of the delinquent employee where he was found in an inebriated state earlier, though there are cases where he remained absent from duties without sanction of leave, it would serve the ends of justice if the punishment is modified to reduction in rank including reduction to a lower-scale or to a lower stage in a time scale. Since the petitioner's husband was a Constable in PAC, which is the lowest rank in the hierarchy, he could not be reduced to a lower rank. However, as a measure of punishment, the petitioner's husband shall be reduced to the lowest scale which shall be counted from the date of punishment i.e. from 04.10.2005. Consequently, the order dated 04.10.2005 is modified to the above extent. The writ petition is partly allowed.
It is made clear that the petitioner's husband is not entitled to any arrears of salary for the period 04.10.2005 to 25.10.2012 when he ultimately passed away, but this period shall be counted for the pensionary and other post-retiral benefits and this period shall not be treated as break in the service of the petitioner's husband and accordingly the department shall fix the pension and the family pension and other service benefits which are liable to be given to his wife in accordance with law.