Narendra Dutta Rai vs Union Of India

I.P. MUKERJI, J.

This is the case of a constable in the Central Industrial Security Force. He is the appellant in this appeal. He was deployed in the unit CPM,

Panchgram (Assam). On 29th July, 2005, he was given shift duty from 1 O’ clock in the afternoon till 9 O’ clock at night at the new gate duty

post. At about 5 O’ clock in the afternoon the shift inspector-in-charge informed the Company Commander/Inspector, Rahatu Lal that the

appellant was under the influence of alcohol and unable to perform his duty properly. He was withdrawn from duty and another constable deployed in

his place. Thereafter, in a jeep accompanied by Inspector Rahatu Lal and other officials from the Central Industrial Security Force, he was taken to

the Cachar Paper Mill Hospital of Hindustan Paper Corporation Ltd. He was brought in to this hospital at 6.30 p.m. It was alleged that while travelling

in the jeep he told Rahatu Lal “touching his body that he would kill him, if he lost his job.â€​ The doctor at the hospital examined him and wrote out a

prescription as follows:- “irrelevant talks â€" abnormal behaviour â€" smell of alcohol, B.P â€" 130/90, Chest â€" clear, Abd â€" NAD.â€​

On 31st October, 2005, a memorandum of charges was drawn up against him. The first related to the alleged influence of alcohol while on duty. The

second was with regard to touching the person of his superior Rahatu Lal and uttering abusive words. The third accused him of being a habitual

offender as between 10th July, 1996 and 23rd July, 2005 he was awarded 13 punishments. On 5th December, 2005, the appellant filed his written

reply to the said charges. A full fledged regular departmental enquiry was started against him. The Deputy Commandant of the CISF Unit, CPM,

Panchgram (Assam) was appointed as the enquiry officer. The Group Commandant, CISF group, head quarters, Guwahati was appointed as the

disciplinary authority. In the enquiry, eleven witnesses for the prosecution were examined. Nine documents were exhibited. Rahatu Lal was the first

witness (PW 1). The appellant did not adduce any evidence. The enquiry report dated 8th March, 2006 was against him. The enquiry officer held him

guilty of all the charges.

By his letter dated 29th May, 2006 the disciplinary authority upheld the findings of the enquiry officer. He imposed the penalty of removal from service

upon the appellant. From this order he filed an appeal before the Deputy Inspector General. By the order dated 28th July, 2006 the Deputy Inspector

General refused to interfere with the order of the Disciplinary Authority. A review application was filed before the Inspector General. It was

dismissed on 23rd August, 2007. The Inspector General affirmed the orders of the disciplinary authority and the appellate authority, the Deputy

Inspector General.

Aggrieved by the entire enquiry proceedings and the punishment inflicted on him, the appellant preferred the instant writ application before this Court.

The writ application (WP No.17067(w) of 2008, Narendra Dutta Rai Vs. Union of India & Ors.) was heard before Mr. Justice Ashis Kumar

Chakraborty. On 29th September, 2016 his lordship was pleased to dismiss it. The premises of law on which the learned judge proceeded cannot be

faulted. He said that the enquiry proceedings were not criminal or quasicriminal proceedings and hence the charges need not be proved beyond

reasonable doubt. They could be established on a preponderance of probabilities. The Court further opined and in my view correctly that in the

exercise of its writ jurisdiction this Court does not make a reassessment of the findings of the enquiry officer or probe into the adequacy or reliability

of the evidence considered by him. The Court only has to see whether the enquiry officer acted on reasonable grounds. Only if there was any

palpable error in the conduct of the proceedings or in the decision should a Court interfere in exercise of its writ jurisdiction.

The learned judge found no such infirmity in the enquiry proceedings and dismissed the writ application. On appeal before us, one or two questions

became very material. The principal charge against the appellant was that he was inebriated. It is true that if any person is found under the influence

of alcohol during work and particularly so if the person belongs to the security force, strict action is taken against him. But the fact is that in this case

the appellant was taken to a hospital, Cachar Paper Mill Hospital of Hindustan Paper Corporation Ltd. He was not taken to any government hospital.

The examination was very superficial. The doctor, signing the prescription smelt alcohol from the person of the appellant and wrote out this remark in

the prescription: “To consult forensic medicine for further investigationâ€. No such investigation seems to have made. It is on the basis of this

medical report and the oral evidence of witnesses that the appellant had smelt of alcohol, that the principal charge against him was said to have been

proved. At the material time nobody drew samples of the appellant’s breath and blood to test the amount of alcohol in his system.

In a case similar to the appellant Munna Lal Vs. Union of India & Anr. reported in (2010) 15 SCC 399 a Sub-Inspector of Police was charged with

being in a drunken condition at the Indian Airlines Cargo Gate in Indira Gandhi International Airport, New Delhi. In this case also the delinquent was

taken to the Airport dispensary where on examination there appeared to be a mild smell of alcohol from his body. He was referred to the Safdarjung

Hospital. He was not taken to that hospital. The Supreme Court ruled that in the absence of a proper test for alcohol in the blood or urine of the

delinquent it could not be established that he was under the influence of alcohol while on duty. In Baghubhai Hassanalli Karyani Vs. State of

Maharashtra reported in (1971) 3SCC 930, Mr. Justice Sikri quoting a medical practitioner had said “that a person could smell of alcohol without

being under the influence of drunkenâ€. Without a proper test of blood and urine it could not “definitely held that he appellant was drunk at the time

accident occurred.†To punish a person on the ground that he was under the influence of alcohol in the work place, a proper test report of the level

and amount of alcohol of blood and urine is necessary. Our Courts do not rely upon oral evidence of drunkenness, to punish such an accused person.

A similar view was taken by Justice Samapti Chatterjee in Radhe Shyam Vs. The Union of India & Ors. reported in (2017) WBLR (Cal) 435. This

decision was upheld in Union of India & Ors. Vs. Radhey Shyam reported in (2017) 5WBLR (Cal) 468. A special leave petition against it was

dismissed by the Supreme Court.

In Munna Lal Vs. Union of India & Anr. reported in (2010) 15 SCC 399, upon holding that the charge of being found in a drunken condition was not

proved against the employee concerned, the Supreme Court held that the punishment imposed was illegal and reinstated him in service with 50% back

wages. In Union of India & Ors. Vs. Radhey Shyam reported in (2017) 5WBLR (Cal) 468, the Division bench of this Court took a similar view. In

Baghubhai Hassanalli Karyani Vs. State of Maharashtra reported in (1971) 3SCC 930, which was from a conviction in a criminal appeal, the Supreme

Court reduced the sentence of the accused to imprisonment already undergone but retained the sentence of fine.

Therefore, out of two material charges the appellant was entitled to be exonerated in respect of one charge relating to drunkenness during duty. If one

goes by the above decision of the Supreme Court and our Court one will find that in the absence of positive presence of alcohol in the blood or urine,

on medical test being carried out on the delinquent, only a minor punishment could at best been inflicted on him. As far as charge II is concerned it is

proved against the appellant. Following the dicta pronounced by Mr. Justice Ashis Kumar Chakraborty in the impugned judgment and order this Court

is not inclined to interfere with the findings of the enquiry officer.

But then, if you look carefully into the elements of the second charge you will find that it only related to verbal abuse of his superior by the delinquent

coupled with “touching the bodyâ€. There was no charge of physical assault or hurt caused by him. The third charge was not a substantive one.

The appellant was charged and punished 13 times for minor punishments and on that basis he should be proclaimed a habitual offender and punished, it

was alleged. I am of the opinion that for each of the minor charges the appellant has been punished and has undergone punishment. There is no place

in our legal system for double jeopardy for one offence. But yes, habitual offenders or wrong doers may be punished severely, according to the

service rules, as if a separate offence had been committed.

In my view, if the appellant is exonerated from the charge of drunkenness on duty he could only be convicted of having verbally abused his senior and

touched his body without his permission and being a habitual offender with regard to minor offences. At any rate, his punishment could not be a major

one. Punishment should be proportionate to the wrong doing. A disproportionate punishment is discouraged by our legal system because it is unjust,

unfair and unreasonable. Hence, the punishment handed down to the appellant of dismissal from service, was in my opinion harsh.

Therefore, only the punishment awarded to the appellant is interfered with by this Court by directing that the respondents shall within four weeks of

communication of this order revise the punishment on the appellant by reducing it to any punishment except dismissal, removal from service and

compulsory retirement, etc. In other words the punishment imposed on the appellant shall be minor. This appeal is accordingly partly allowed to the

above extent. The impugned judgment and order dated 29th September, 2016 is partly set aside. I have had the privilege of perusing the proposed

judgment and order of my sister Justice Amrita Sinha. I entirely agree with it. The ordering part of this judgment and order will be as per her

ladyship’s order.

(I.P. MUKERJI, J.)

Amrita Sinha, J.:-

(1) Heard the submissions made on behalf of the appellant/writpetitioner. None appears on behalf of the respondents in spite of service.

(2) The appellant was a constable serving the Central Industrial Securityforce, hereinafter referred to as ‘CISF’ for the sake of brevity. On

29.07.2005, the appellant was detailed for ‘B’ shift duty from 13 hours to 21 hours at new gate duty post. The appellant was posted at the CISF

unit CPM, Panchgram.

(3) On 31st October, 2005, the appellant was served with a memorandum issued by the group commandant, CISF group, Hqrs. Guwahati intimating

the appellant about the proposal to hold an inquiry against him under Rule 36 of CISF Rules, 2001. The statement of articles of charge, the statement

of imputation of misconduct in support of the articles of charge, the list of documents and the list of witnesses by whom the articles of charge was

proposed to be sustained were also enclosed with the said memorandum. A detailed departmental inquiry was held against the appellant. The Deputy

Commandant filed the enquiry report concluding that all the three charges levelled against the appellant had been fully proved without any doubt.

(4) Relying upon the enquiry report, the group commandant, CISF Group, Hqrs. Guwahati being the disciplinary authority, imposed upon the petitioner

the penalty of ‘removal from service’ vide order dated 29th May, 2006.

(5) The appeal preferred by the appellant/petitioner was rejected by the Deputy Inspector General/NEZ vide order dated 28th July, 2006. The revision

petition filed was also rejected by the Inspector General (NEZ) being devoid of merit vide order dated 23rd August, 2007.

(6) It appears from the averments made by the respondents in the affidavit in opposition filed before the Ld. Single Judge that challenging the order of

the disciplinary authority, the petitioner filed a Writ Petition being WP No. 37718 of 2007 before the Allahabad High Court which was dismissed on

the ground of lack of territorial jurisdiction.

(7) The petitioner thereafter challenged the order of the disciplinary authority, the appellate authority and the revisional authority before this

Hon’ble Court by filing writ petition being WP No. 17067 (W) of 2008 which was dismissed by the learned Single Judge vide judgment dated 29th

September, 2016.

(8) The judgment dated 29th September, 2016 passed by the learned Single Judge in WP No. 17067 (W) of 2008 is impugned herein.

(9) The statement of article of charges framed against the appellant are as follows:-

ARTICLE OF CHARGEâ€"I

“An act prejudicial to good order and discipline of the Force, in that No. 914528162 Constable N.D. Rai of CISF Unit CPM Panchgram, who was

detailed for ‘B’ shift duty on 29.07.2005 from 1300 hrs to 2100 hrs at New Gate duty post, found under influence of alcohol and not performing

his duty properly disobeying the instructions of his senior HC/GD S. Hazra, who was also deployed with him at the said duty post. He was withdrawn

from the New Gate duty post by deploying another Constable namely J.S. Baidya in his place. The above act on the part of No. 914528162 Constable

N.D. Rai amounts to gross misconduct, indiscipline, dereliction of duty and unbecoming of a member of disciplined Force like CISFâ€. Hence the

charge.

ARTICLE OF CHARGE-II

“An act prejudicial to good order and discipline of the Force, in that no. 914528162 Constable N,D. Rai of CISF Unit CPM Panchgram abused

Insp/Exe Rahatu Lal by using impolite and filthy language and also threatened him for life consequences in presence of other CISF personnel, while he

was taken to HPC/CPM hospital for medical examination on 29.07.2005, Const N.D. Rai was medically examined by the doctor of HPC/CPM

hospital who confirmed his intoxicated condition. The above act on the part of No. 914528162 Constable N.D. Rai amounts to grave misconduct,

indiscipline and unbecoming of a member of disciplined Force like CISFâ€​. Hence the Charge.

ARTICLE OF CHARGE-III

“An act prejudicial to good order and discipline of the Force, in that No. 914528162 Constable N.D. Rai of CISF Unit CPM Panchgram is not

amenable to discipline and has not improved his conduct as expected from a member of disciplined Force inspite of having been penalized/punished

earlier on 13 (thirteen) occasions for his incorrigible habits during his short spell of 14 years service, thus he is a habitual offenderâ€. Hence the

charge.†(10) It is the specific case of the appellant that apart from the preliminary observation of the attending doctor attached to the Hindustan

Paper Corporation Limited, Chachar Paper Mills Hospital, Panchgram, Assam where the petitioner was taken for medical check up at around 6:30

p.m. on the day of the alleged incident no further medical check up or medical test was conducted to testify or prove the charge of drunken behaviour

of the appellant/petitioner.

(11) The appellant/petitioner specifically contended that the attending doctor checked the petitioner and observed that ‘irrelevant talks, abnormal

behaviour, smell of alcohol found’. The blood pressure of the appellant recorded 130/90 and his chest was clear. The doctor advised to consult

forensic medicine for further investigation.

(12) The respondents, instead of consulting forensic medicine for further investigation as per the advice of the attending doctor, simply sat tight over

the matter. No follow up action to prove the influence of liquor was conducted.

(13) On 31st October, 2015, charge sheet was issued against the petitioner containing the article of charge. Not performing duty properly, disobeying

the instruction of the senior, using impolite and filthy language, abusive behaviour threatening with life consequences under influence of alcohol were

the primary charges levelled/framed against the appellant.

(14) The learned Advocate for the appellant referred to the case decided by the Hon’ble Supreme Court in Munna Lal vs. Union of India & Ors

reported in (2010) 15 SCC 399 wherein the Hon’ble three Judges’ Bench had held that in the absence of positive evidence the charge levelled

against the appellant was not proved satisfactorily. In the absence of sufficient proof the disciplinary authority should not have imposed such penalty.

The Court held that the punishment imposed was illegal and the appellant entitled to be reinstated in service and further entitled to get 50% of the back

wages for the period he was out of service. The respondents were directed to reinstate the appellant in service forthwith.

(15) The learned Advocate for the appellant further refers to the case of Bachubhai Hassanalli Karyani vs. State of Maharashtra reported in (1971) 3

SCC 930 wherein the Court held that on the evidence placed before the Court it cannot be definitely held that the appellant was drunk at the time the

accident occurred. In the said case it was recorded that the doctor admitted that a person could smell of alcohol without being under the influence of

drinking. No urine test of the appellant was carried out and although the blood of the appellant was sent for chemical analysis no report of the analysis

was produced by the prosecution.

(16) He further refers to the case of Radhe Shyam vs. Union of India reported in (2017) 3 WBLR (Cal) 435 wherein a learned Single Judge of this

Hon’ble Court held that the petitioner was not referred to any medical board for examination. The Court held it was not the duty of the enquiry

officer to opine and express his finding in the enquiry report. Duty of the enquiry officer is to enquire into the matter and send the report to the higher

authority for adopting decision on the basis of the enquiry report. The eptitioner was directed otbe reinstated with 50% of the back wages during th

eperiod spent under dismissal. The appeal filed against the order of the learned Single Judge was dismissed by the Hon’ble Division Bench and the

SLP preferred against the order of the Division Bench was also dismissed.

(17) The Ld. Advocate further submits that the penalty imposed on the appellant is unreasonably harsh and grossly disproportionate to the alleged

offences committed by him. He submits that the appellant has been adequately punished on the earlier occasions for the misconduct on his part and

removing him from service relying on the same offences will amount to double jeopardy and cause serious prejudice and miscarriage of justice.

(18) It appears from record that though the incident occurred on 29th July, 2005 the respondents issued the memorandum and the articles of charge on

31st October, 2005. It further appears that although the attending doctor advised to consult the forensic medicine for further investigation the

respondents did not take care to follow up and/or take steps in accordance with the said advice of the doctor. The medical prescription of the

attending doctor does not conclusively prove that the petitioner had consumed alcohol and accordingly he advised for further investigation to arrive at a

definite finding.

(19) The respondent authorities instead of practicing the regular procedure for testing alcohol consumption relied upon the submissions/statements

given by the witnesses to frame and allegedly prove the charge against the petitioner.

(20) As per Black’s Law Dictionary ‘under the influence of intoxicating liquor’ means any abnormal mental or physical condition which is

the result of indulging in any degree in intoxicating liquor and which tends to deprive one of that clearness of intellect and control of himself which he

would otherwise possess.

(21) ‘Intoxicating liquor’ according to Black’s Dictionary means any liquor intended for use as a beverage or capable of being so used

which contains alcohol in such proportion that it will produce intoxication when imbibed in such quantities as may practically be drunk.

(22) It is well-settled that departmental proceeding is quite different from proving charges in a criminal case. The rigours of following the legal

procedure in proving charges in a criminal trial is not necessarily followed while proving charge in a departmental proceeding. The principle of

preponderance of probability does apply while proving a charge in a departmental proceeding. But in a departmental enquiry leading to penal

consequences like loss of job which means loss of livelihood there must be fair play in action and there must be proper investigation into the charges so

as to bring home the guilt of the accused.

(23) In the instant case, apart from the observation made by the doctor at the time of check up of the appellant as regards irrelevant talks, abnormal

behaviour and smell of alcohol and the evidences of the witnesses no further piece of evidence has been put forward to prove the charge against the

appellant.

(24) At the time of inquiry the appellant had submitted that he was discharging his official duty without taking any alcohol. Due to sudden deterioration

in his health he sat on the cement slab to relax. He further stated that the witness nos. 1, 2, 5 and 6 had given their statements under pressure and he

had never given any threat to the witness no. 1 as alleged or at all. He stated that all the allegations levelled against him were false. (25) The

disciplinary authority relying upon the statements of the witnesses came to the conclusion that the appellant had consumed alcohol during duty hours

and threatened the superior officer with life consequences under the influence of liquor. The same amounts to grave misconduct and not tolerable in a

disciplined force. Accordingly, the disciplinary authority imposed the penalty of removing the appellant from service.

(26) The appellate authority and thereafter the revisional authority only reiterated the observations made by the disciplinary authority and mechanically

concluded that there were no reasons to interfere with the order of penalty passed by the disciplinary authority and further upheld the same.

(27) Upon hearing the submissions made on behalf of the appellant and upon perusal of the records available before this Court we come to the

conclusion that it was not proper on the part of the respondent authorities to impose major punishment and remove the appellant from his service

relying upon the statement of the witnesses and further not following the advice of the doctor attending the appellant for further forensic investigation.

(28) Before imposing major penalty upon an employee the respondent authorities ought to have conducted the necessary medical test(s) to come to a

definite finding that the employee was under the influence of alcohol which resulted in his misconduct. The respondents ought to have satisfied

themselves that the employee was in such a mental and physical condition so as to deprive him of clearness of intellect and control of himself which

he would otherwise possess and the said behaviour was under influence of alcohol. In the absence of any corroborating piece of evidence an

employee ought not to be removed from service.

(29) The defence taken by the respondent authorities in their affidavit-inopposition filed before the learned Trial Judge that it is not the case of the

petitioner that in the absence of his blood report or any report of forensic medicine the first or the second charge levelled against him cannot be

proved. Further neither the petitioner adduced any oral evidence nor did he produce any document to defend, deny or dispute any of the three charges

levelled against him. The petitioner even did not cross-examine the prosecution witnesses who testified against him.

(30) It is the well settled principle of law that the onus to prove the offence lies on the prosecution. In the instant case, it was the obligation of the

respondent authorities to prove the case against the appellant and not the other way round. In the absence of any cogent evidence against the

appellant the case against him could not have been proved by the respondents. Moreover the definite statement made in Charge II that the attending

‘doctor of the hospital confirmed the intoxicated condition’ of the appellant is absolutely false. This shows the predetermined and biased mind

set of the disciplinary authority who conducted the inquiry against the appellant.

(31) For the aforesaid reasons, the order of penalty passed by the disciplinary authority is set aside. The respondents are directed to reinstate the

appellant forthwith and pay 50% back wages within a period of eight weeks from the date of communication of this order. The respondents are

directed to pass fresh order except dismissal, removal from service or compulsory retirement, within four weeks from the date of communication of

this order.

(32) The appeal is partly allowed. No order as to costs.

(33) Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously in compliance

of usual legal formalities.