Central Administrative Tribunal - Delhi
Constable (Dvr) Rai Singh S/O Shri ... vs Govt. Of N.C.T. Of Delhi Through The ... on 22 January, 2008
ORDER
V.K. Bali, J. (Chairman)
1. Constable (Driver) Rai Singh, the applicant herein, is before this Tribunal for the 4th time, seeking to set aside the order of punishment imposed upon him pursuant to a departmental enquiry under Delhi Police (Punishment & Appeal) Rules, 1980, that was held in 1995. The applicant in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, has called in question order dated 28.3.2005, Annexure A-1, whereby punishment of forfeiture of service for two years permanently was imposed upon him by the disciplinary authority as also the order passed by the appellate authority dated 25.8.2006, Annexure A-2, vide which while confirming the findings of the guilt of the applicant on the charges framed against him, punishment was reduced to that of forfeiture of one year of service temporarily.
2. Brief facts of the case, as set out in the application, would reveal that the applicant was appointed in Delhi Police as a Constable (Driver) on 18.4.1983. While posted at 5th Bn, DAP, he was placed under suspension after a preliminary enquiry was held by S.H.O. Mukherji Nagar and thereafter a departmental inquiry was ordered on 25.5.1995. The charge against the applicant was that he consumed alcohol on duty and quarreled with fellow Constable Baljinder Singh. The departmental enquiry was ordered against the applicant and summary of allegations was served upon him on 10.7.1995. The enquiry officer concluded the departmental enquiry proceedings and submitted his findings to the disciplinary authority. The applicant was supplied copy of the findings of disciplinary authority and he submitted his reply to the same vide his representation / reply dated 6.5.1996. The applicant vide order dated 4.10.1995, was dismissed from service. The appeal preferred by the applicant against the order aforesaid, was dismissed by the appellate authority on 24.10.1996.
3. Being aggrieved, the applicant filed O.A. No. 8 of 1998 in this Tribunal which was disposed of vide order dated 9.11.2000. The case was remitted to the disciplinary authority either to re-consider the question of imposition of penalty without taking into consideration the previous record or alternatively by framing additional charge and serve it upon the applicant and thereafter to proceed to pass appropriate order of penalty, after affording him a reasonable opportunity to show cause. What required to be mentioned here is that while inflicting punishment upon the applicant, the previous record, was also taken into consideration even though it was not subject matter of separate charge framed against him. Pursuant to orders passed by the Tribunal as mentioned above, the applicant was reinstated in service vide order date 1.12.2000 followed by corrigendum dated 6.12.2000. Thereafter show cause notice was issued to him on 9.12.2000. The applicant submitted reply to the show cause on 26.12.2000. The disciplinary authority after going through the relevant evidence available on record and hearing the applicant, passed a detailed order inflicting the proposed punishment of forfeiture of two years approved service permanently for a period of 2 years entailing reduction in his pay by 2 stages, vide order dated 15.2.2001. Accordingly, the pay of the applicant was reduced from Rs. 3350/- P.M. to Rs. 3200/- for a period of 2 years, with immediate effect. The applicant was not to earn increments of his pay during the period of reduction and that on the expiry of this period, the reduction will have the effect of postponing his future increments of pay. The suspension period of the applicant as also of dismissal was decided as period not spent on duty for all intents and purposes. The applicant filed an appeal which was dismissed on 22.2.2002.
4. The applicant again approached this Tribunal in O.A. No. 92/2003 and vide order dated 16.1.2003, following the decision of the Division Bench of Delhi High Court in CWP No. 2368/2000, Shakti Singh v. Union of India and Ors., decided on 17.9.2002, this Tribunal observed that penalty imposed upon applicant tantamounts to double punishment in view of rule 8 (d) (ii) of the Delhi Police (Punishment & Appeal) Rules, 1980, which could not have been done. The impugned orders were quashed and the matter was remitted to the disciplinary authority to proceed with the case in accordance with law. Pursuant to the directions issued by this Tribunal in O.A. No. 92/2003, then Additional DGP passed order dated 5.3.2003 quashing the order dated 15.2.2001 passed by the disciplinary authority imposing penalty of forfeiture of 2 years of approved service, as also order dated 26.2.2002, passed by the appellate authority. A fresh order inflicting forfeiture of two years approved service permanently for a period of two years entailing reduction in his pay from Rs. 3350/- to Rs. 3200/- was passed. The period of suspension of the applicant as also period of dismissal was treated as not spent on duty. The appeal preferred by the applicant against the order aforesaid, was not entertained being not maintainable under any law.
5. The applicant filed yet another O.A. No. 1140/2004 before this Tribunal. The impugned order once gain was quashed by this Tribunal on the ground that the same was non-speaking and his appeal was maintainable and disciplinary authority was directed to pass a fresh order in accordance with law. Pursuant to the directions issued by the Tribunal in the O.A. referred to above, the disciplinary authority reconsidered the matter and has ordered punishment of forfeiture of two years approved service permanently entailing proportionate reduction in his pay. The suspension period as also the period of dismissal has been decided as not spent on duty. The appellate authority modified punishment to forfeiture for one year of approved service temporarily.
6. Mr. Sachin Chauhan, learned Counsel appearing for the applicant in support of the present application contends that there was no charge against the applicant that when he quarreled with his colleague Constable Baljinder Singh in front of Barrack No. 15, he was under the influence of liquor and the enquiry officer also at the most, while arriving at a conclusion on the basis of evidence lead before him, had only mentioned that the applicant had consumed liquor, at the time the quarrel took place between the applicant and co delinquent Baljinder Singh, the disciplinary authority yet held that from the statement of PWs and documentary evidence it has been proved that applicant had created nuisance in DO's room under the influence of alcohol. He further contends that it is proved from the evidence in the case that applicant was not under influence of liquor at the relevant time. In support of the contention referred to above, the learned Counsel referred to the statement of Dr. Jagdeep Rai Chug, PW-6, who stated that during medical examination he found that smell of alcohol was coming from mouth of the applicant although there was no mark of hurt at his body and as per his opinion applicant had consumed alcohol but at that time he was not under the influence of liquor. The counsel also refers to evidence to show that the applicant was taken to a near by hospital for his medical examination immediately after quarrel. A reference is also made to the report given by the Medical Officer which suggests that even though smell of alcohol was coming from mouth of the applicant but he was not under influence of liquor. It is urged that if, disciplinary authority had not returned a finding that the applicant was under influence of liquor, punishment inflicted upon him would have been lesser than given to him.
7. There appears to be considerable merit in the only contention of the learned Counsel as referred to above. The enquiry officer after recording evidence of the witnesses, framed the following charge against the applicant:
I Balbir Singh ACP/Adj./V Bn. DAP charge you Const. (Dvr.) Rai Singh No. 4953/DAP that on the intervening night of 22/23.5.95 at about 11.00 P.M. You indulged in a quarrel with Const. Baljinder Singh No. 4447/DAP in front of the Barrack No. 15. HC Lalu Ram No. 4269/DAP D.O./5th Bn. And his Munshi Const. Dharambir No. 4396/DAP heard your loud noise out side the DO room. Const. Baljinder Singh No. 4447/DAP ran away from the spot. You were got medically examined from Bara Hindu Rao Hospital vide MLC No. 298. In which Doctor opined that you had consumed alcohol but not under the influence of liquor.
The conclusion arrived by the enquiry officer reads as follows:
On the testimony of all the documentary evidence and statement of PWs and DWs the charge levelled against the defaulter of consuming liquor, indulging in quarrel with co-defaulter Const. Baljinder Singh No. 4447/DAP and shouting at night on 22/23.5.95 in front of Barrack No. 15 as well as in D.O. Room/5th Bn. DAP is proved.
8. Dr. Jagdeep Rai Chug, PW-6 clearly stated that the applicant was not under influence of liquor. The medical report given by the Doctor immediately after incident would also suggest that applicant was not under influence of liquor. Despite facts as mentioned above, the disciplinary authority in the impugned order observed that 'Besides PW-6 Dr. Jagdeep Rai Chug had clearly deposed that he had medically examined the defaulter on 23.5.1995 and at that time the defaulter had consumed the alcohol. From the statement of PWs and documentary evidence it had been proved that defaulter had created nuisance in DO's room under t he influence of alcohol'
9. In so far as the charge against applicant with regard to his picking up a quarrel with his co defaulter Constable Baljinder Singh is concerned, the same stood proved but we are of the considered view that there was no charge against the applicant that he had picked up quarrel under the influence of alcohol. He was not found under influence of liquor as well by Doctor who medically examined him, after the incident. The statement of PW-6 Dr. Jagdeep Rai Chug as also report given by him would also manifest that even though applicant may have consumed alcohol, he was not under its influence. The facts being as mentioned above, there was no occasion for the disciplinary authority to have held that the applicant was under influence of alcohol. There is no doubt in our mind that if the finding was to be only that the applicant had consumed liquor but was not under its influence, it could have resulted into lesser punishment to the applicant. The applicant was not on duty at the relevant time. It is not even the case of the Department that he had consumed liquor when he was on duty. The applicant is a Driver and may be, he was in reserve, to be called on duty, if required. When Doctor examined his state of clothing, gait, speech, finger to nose test, picking of pencil from floor, eyes-conjunctive, pupil's size & reaction, knee reflex, all were normal. Orientation in time and place was also normal. There were no injuries. He only smelled of alcohol. It is well known that one may smell of alcohol in the early morning even though he may have consumed liquor at night. As to when the applicant consumed liquor is not known. In the circumstances as mentioned above, the disciplinary authority was not justified to return a finding that the applicant, at the relevant time, was under the influence of alcohol. Before we may part with this aspect of the case, we may mention that the appellate authority had indeed reduced the punishment by modifying it to forfeiture of one year's approved service temporarily, but that was on the ground that the co-delinquent of the applicant, Const. Baljinder Singh, was awarded punishment of forfeiture of two years' approved service temporarily, and in the view of the appellate authority the gravity of misconduct by the applicant was lesser than that of his co-delinquent, as is clearly recorded in the appellate order.
10. In the facts and circumstances of the case, we partly allow this application. We direct the disciplinary authority to re-consider the case of the applicant as regards the quantum of punishment by considering that the applicant may have consumed liquor but he was not under its influence. We are sanguine that on this occasion the concerned authority would do complete justice and give punishment to the applicant commensurate with his guilt. We are once again sanguine that the issue would now be given a quietus by the departmental authorities and the applicant would have no occasion to come to this Tribunal for the 5th time.
11. In the facts and circumstances of this case, there shall be no order as to costs.