The Allahabad High Court while allowing the petition said that mere external examination is not sufficient proof to hold a person guilty of consuming alcohol and it cannot be concluded that he was in intoxicated condition.
The Division Bench of Justice Saumitra Dayal Singh and Justice Anish Kumar Gupta passed this order while hearing a petition filed by Jai Mangal Ram.
The petition has been filed challenging the orders dated 07.05.2012, 25.09.2012, 29.05.2012 and also challenging the order dated 11.01.2016 passed by the U.P State Public Service Tribunal in Claim Petition and also order dated 29.05.2017 whereby the review petition filed by the petitioner has been rejected.
The facts of the case are that the petitioner herein was working as a constable in the Police Line, Varanasi. The allegation against the petitioner is that he misbehaved with his senior officer, Devi Dayal, being in an intoxicated condition, for which the complaint was made against him and he was placed under suspension.
In reply to the said charges, the petitioner herein submitted his explanation dated 11.01.2011 and categorically submitted that on the date of alleged incident, he has not consumed the alcohol, as alleged, nor he has misbehaved with his senior.
The petitioner has specifically submitted that he was sick for sometime, for which he used to consume the Ayurvedic medicines (Drakshasav) and on the date of alleged incident as well, he had consumed the baidhyanath (Drakshasav), which includes alcohol and a report was got prepared with mala fide intention against the petitioner herein.
It is further submitted by the petitioner that before preparing the report with regard to his intoxication condition neither the urine test nor the blood test were conducted to arrive at the specific finding as to whether the petitioner had consumed the liquor and the medical report was prepared only by the external examination.
In response to the show cause notice dated 10.06.2011, the petitioner herein submitted a detailed reply to the said show cause notice wherein it was specifically pleaded by the petitioner that the said show cause notice was issued to the petitioner herein with a predetermined mind, wherein the DIG has agreed with the proposed punishment of dismissal. Therefore, the said show cause notice was a merely formality. Thereafter, the Senior Superintendent of Police, vide order dated 07.5.2012, passed the order of dismissal of the petitioner from service.
Against the said order dated 07.05.2012, the petitioner herein preferred an appeal before the Deputy Inspector General of Police on 02.07.2012, wherein in the memo of appeal, the petitioner herein has categorically stated the said show cause notice has been issued with a predetermined mind, wherein it was stated that the recommendations have been made for the termination of service of the petitioner with which he is in agreement. Vide order dated 25.09.2012.
The said appeal of the petitioner herein was dismissed by the Deputy Inspector General of Police, Varanasi. Against the order of dismissal of the said appeal, the petitioner herein filed a review petition, which was also dismissed vide order dated 29.05.2013.
Aggrieved by the aforesaid order of dismissal from service and the dismissal of the appeal and the review application, the petitioner herein preferred the direction Petition before the State Administrative Services Tribunal, Lucknow, which was dismissed vide order dated 11.01.2016.
Against the order dated 11.01.2016, the petitioner herein filed review petition, which was also dismissed vide order dated 29.05.2017.
Counsel for the petitioner submitted that in the case the petitioner herein has been charged and found guilty on the basis of a complaint made by the one Devi Dayal, Inspector posted in the Police Line to the effect that the petitioner has misbehaved with him in an intoxicated condition. In the case, to prove the fact that the petitioner herein was in an intoxicated condition, a medical report was obtained from the Medical Officer only on the external examination of the petitioner herein.
However, neither the blood test nor the urine test was conducted before giving such report by the concerned Medical Officer and the Medical Officer has also not been examined by the Department during the entire proceedings against the petitioner herein. Therefore, the said medical report cannot be relied upon to establish the fact that the petitioner was in an intoxicated condition.
Counsel for the State submitted that the police forces are the disciplined force. Therefore, any misbehavior by the police personnel against their superior officer is not permitted. The petitioner has been found in an intoxicated condition and was misbehaving with his superior officers due to intoxication and the charges were proved against him in a detailed enquiry conducted by the Enquiry Officer, giving full opportunity of hearing to the petitioner herein.
So far as the non-examination of Medical Officer is concerned, the counsel for the State submitted that the petitioner was apparently in intoxicated condition, which is supported by the witnesses and the medical report as well. In the disciplinary proceedings, the doctors are not required to be examined as the same was not a criminal trial where the allegations are required to be proved beyond reasonable doubt. In the disciplinary proceedings, the probability and preponderance of the allegations are sufficient to prove the charges against the delinquent officer.
The Court observed that,
We proceed to consider the first submission made by the counsel for the petitioner with regard to the intoxication of the petitioner herein at the time of incident, without the urine test or the blood test, for which the finding has been recorded against the petitioner, only because of the smell of the alcohol found by the doctor, which is not sufficient to prove the intoxication of the petitioner herein.
In the case the petitioner herein was taken to the medical officer who has only externally examined the petitioner and having found the smell of alcohol concluded that the petitioner herein had consumed the alcohol. Therefore, mere external examination is not sufficient proof to hold a person guilty of consuming alcohol and it cannot be concluded that he was in intoxicated condition. Therefore, the charge against the petitioner with regard to the consumption of alcohol during the duty hours, is in the considered opinion of the Court, has not been proved by the department, therefore, it cannot be held that the petitioner was guilty of the charge of consuming the alcohol during the duty hours.
“In view of the above, we are of the considered opinion that the show cause notice which was issued by the DIG has mentioned that severe punishment of termination is proposed against the petitioner on the basis of the previous conduct of the petitioner herein and the said notice was sent with a predetermined mind, which clearly shows bias against the petitioner herein. The aforesaid predetermined notice of termination sent by the DIG and the subsequent termination by the S.S.P was influenced on the basis of the opinion already expressed by the DIG in the show cause notice.
Therefore the said show cause notice in the considered opinion of the court is illegal notice and on the basis of previous conduct, severe punishment of termination cannot be awarded. We are of the considered opinion that no charge of misbehaviour with seniors/colleagues due to intoxication was proved against the petitioner during enquiry as no urine or blood test of the petitioner herein was conducted. Since the punishment order had been passed in violation of the statutory rules and the principles of natural justice, it is rendered null and void”, the Court further observed while allowing the petition.
“The orders dated 7.5.2012, 25.9.2012, 29.5.2012, 11.1.2016 and 29.5.2017 are hereby set aside. The petitioner herein shall be reinstated in service with continuity in service alongwith 50% back wages for the period he was out of service. The respondents are directed to reinstate the petitioner in service forthwith and shall make payment of his back wages, as above, within two months from the date of receipt of a certified copy of the order”, the Court ordered.