Hakikat Singh vs Union of India and Others

A.N. Jindal, J.—The appellant was slapped with the penalty of dismissal from service on the allegations that he was found absent from duty without permission on 3.4.2002 and was allegedly found lying under the influence of liquor at BSP Fire Station Campus. The appellant challenged the said order of dismissal of 20.8.2003 and the order passed by the appellate court on 15.11.2004, on the ground that the penalty was illegal, null and void and was passed in violation of the principles of natural justice and the rules of procedure. Actually, he was suffering from some mental depression and he remained under treatment from 9.10.2002 to 13.10.2002 and the doctor also opined to that effect. He should not have been imparted such grave penalty for the absent of one day. He was also not given the help of a co-employee. He was not given opportunity to cross-examine the departmental witnesses. No presenting officer was appointed and the Inquiry Officer herself recorded the evidence of the prosecution witnesses. The Inquiry Officer relied upon certain documents, copies of which were not supplied to him. The doctor who had examined the appellant was not examined. The inquiry was not impartial. No authentic evidence has been led in order to prove that the appellant was under the influence of liquor at the time and the place of alleged occurrence. The Inquiry Officer did not apply its mind, while awarding the penalty. The suit was contested by the defendants/respondents, wherein they pleaded that the appellant was found absent from duty on 3.4.2002 and he was found lying in the BSP Fire Station Campus under the influence of liquor, therefore, he was charge-sheeted and after due inquiry, he was removed from service and not dismissed from service.

On the pleadings of the parties, the following issues were framed by the trial court:-

Whether the plaintiff is entitled to the declaration as prayed for? OPP

Whether the plaintiff is entitled to the mandatory injunction as prayed for? OPP

Whether the suit is not maintainable? OPP

Whether the Court at Gurdaspur has no jurisdiction to try the present suit? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Relief.

The trial court, after scrutinizing the evidence of both the parties dismissed the suit of the plaintiff. The appeal preferred by him also met the same fate.

While addressing the arguments, the appellant has again reiterated the same arguments that without evidence of the Medical Officer, it was not proper for the Inquiry Officer to reach the conclusion that the appellant was under the influence of liquor at the time when he was found lying in the BSP Fire Station Campus. No blood or urine samples were taken or produced to establish that the appellant was under the influence of liquor. There is no evidence as to at; what time the appellant was under the influence of liquor?, if he had consumed the alcohol while on duty, if he was on duty during the night when he was found lying in the BSP Fire Station Campus, therefore, he could not be indicted on the allegation that he was under the influence of the liquor when he was on duty as allegation only is that he was not present on duty and he was found lying at BSP Fire Station Campus under the influence of liquor. For the only allegation that the appellant was absent from duty on 3.4.2002, such serious inquiry would not have been initiated by the respondents. The department should have called upon the appellant to show cause as to why he was absent from duty, but without calling for any explanation, the inquiry was initiated. The appellant in his evidence had examined DW 1 Harpreet Kaur, Inquiry Officer. She admitted in her cross-examination that no presenting officer was present during the course of the inquiry and she herself recorded the statements of the witnesses and cross-examined them. The Inquiry Officer could not be prosecutor. This statement of Harpreet Kaur demolishes whole of the prosecution case and lead the inquiry in the realm of nullity. Her statement is contradictory to the report, in which she has mentioned that Mr. D.B. Dubay was the Presenting Officer. If the statement of Harpreet Kaur is read with the inquiry report, then the inquiry report is certainly found to be false. The inquiry also does not indicate if the appellant was given the help of a co-employee, which also caused serious prejudice to the appellant. The appellant is not such an educated person, but a petty constable, knowing little about the intricacies of the law to cross-examine a witness. Therefore, it was bounden duty of the Inquiry Officer to provide him an opportunity to seek help of a co-employee. It may further be observed that the basic document to prove the imputation of charge was the evidence of the doctor who had examined him at the time when he was produced before him for examination, but the said doctor was not examined. No such blood or urine test was produced before the Inquiry Officer so as to prove the charge of his being under the influence of liquor. Mere tendering the report of the doctor that the appellant was under the influence of the liquor hardly proves that he was in such a state at that time.

It was next contended that in the absence of proof of medical evidence regarding presence of liquor, the only fact remains that the appellant was absent from duty and it was in this situation, the arguments raised by learned counsel for the appellant is that for one day absence, the appellant cannot be dismissed or removed from service. The principles of natural justice demand the proportionality of punishment should always commensurate to the penalty of charge. Had it been the intention of the legislature or rule making authority to award dismissal in each and every case, then there was no need to make a separate rule regarding penalty for the different charges. It is only in cases of serious misconduct such a heavy penalty of dismissal or removal from service could be imparted against the delinquent constable. One day absence could be condoned by treating the said absence as leave of the kind due or without pay/leave. However, such penalty would be shocking to the conscience of the court and would be highly disproportionate to the charges found to be proved.

Similar observations were made in case of Union of India (UOI) and Another Vs. S.S. Ahluwalia, (4) Recent Apex Judgments (R.A.J.) 653 : 2007 (7) SCC 257, wherein it was observed as under:-

. . .The scope of judicial review in the matter of imposition of penalty, as a result of disciplinary proceedings, is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate the charges found to be proved in such a case, the Court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case, in order to avoid delay the court can itself impose lesser penalty . . .

Thus, in view of the dictum delivered by the Apex Court, as reproduced above, in my opinion, it is a fit case where interference at the level of this Court has become inevitable, findings the penalty of removal from service for only one day''s absence is shockingly disproportionate to the charges found to be proved.

However, while examining the present case from another aspect, it is observed that 13 years of long service record of the appellant was found unblemished. He never came under shadow of suspicion or doubt or allegation of any misconduct entailing any penalty, inquiry or investigation. However, he has never been punished during his 13 years service and has been thrown away for only one day absence, for which any other minor penalty could be awarded. Though the court should normally be reluctant in interfering over the proportionality of the penalty in very case but the Courts are not powerless to arrest the excess made by punishing authority which awarded penalty shockingly disproportionate to the allegations. As such, while examining the facts of the present case, the considered opinion that the penalty awarded is awfully disproportionate to the charges leveled against him. It is worthwhile to mention here that while passing the order of removal, his 13 years service not was not taken into consideration for the purpose of pension.

Even otherwise, the Court has already observed that due inquiry was not held against the appellant and he has been prejudiced for the reasons as recorded above. Therefore, the order of penalty based on such inquiry was bound to be set aside. Resultantly, the appeal is accepted, the impugned order is set aside and the appellant is directed to be reinstated with arrears of back wages, which may be restricted to the 38 months prior to this judgment