Central Administrative Tribunal - Delhi
Surender Singh - Iii vs Govt. Of Nct Of Delhi Through on 19 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 1824/2007
New Delhi, this the 19th day of January, 2009
HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A)
HONBLE MR. SHANKER RAJU, MEMBER (J)
Surender Singh - III,
Constable of Delhi Police,
PIS No.28882415,
R/o WZ-80, Khayla Village,
Near Gujjar Chaupal, New Delhi-18 Applicant
(By Advocate: Shri Anil Singal)
Versus
Govt. of NCT of Delhi through
1. Commissioner of Police,
PHQ, IP Estate, New Delhi
2. Joint Commissioner of Police,
Rashtrapati Bhawan, PHQ,
IP Estate, New Delhi
3. D.C.P. (Rashtrapati Bhawan),
Rashtrapati Bhawan, New Delhi Respondents
(By Advocate: Shri Ajesh Luthra)
ORDER
Mr. L.K.Joshi, Vice Chairman (A) In departmental proceedings against Constable Surender Singh-III of Delhi Police, the Applicant herein, the following charges were served:
I, Ashok Kumar (E.O.) charge you const. Surender No.208/RB (PIS No.28882415) that on the night intervening 13/14.12.2003, at about 1.15 AM, Inspr. Jaspal Singh Night checking officer/RB while on checking duty reached inside the [dome] at R.P. Bhawan, where you found sleeping on the floor, placing your rifle along side the wall. On the enquiry from the const. Balaji No. 143/RB performing duty out side the dome it was revealed that you were smelling of alcohol. The checking officer and Const. Balaji No.143/RB tried to wake you Const. Surender No.208/RB up but in vain, as you were fast asleep in a state of intoxication. A guard posted at point (A-88) was called and after great efforts, you were woken up. During the course of checking, a half filled old monk XXX RUM bottle was recovered from the pocket of your long coat which was seized thought (sic) a seizure memo. SI Balbeer Singh, (A-80) was deputed to get you medically examined at RML Hospital and after examination SI Balbeer Singh No. D-2002 returned and submitted the MLC. The MLC of you confirmed that you were smelling of alcohol. This is a serious lapse on your part. The security in R.P. Bhawan is a sensitive matter where round the clock security is provided to R.P. Bhawan complex. In the present security scenario the threat from various terrorist organizations to VVIP in quite high and security personnel found not alert at duty points and not performing security duty is a serious lapse and can be hazardous to the whole security system. The performance of duty by you in such a manner could prove fatal to the VVIP security you have also conducted yourself in a manner unbecoming of a police personnel. The above act of sleeping consuming alcohol, keeping his rifle along with the wall and carrying half bottle of XXX Rum on duty by you, Const. Surender No.208/RB amounts to gross negligence, carelessness and dereliction in the discharge of your official duties which renders you liable to be dealt with punishment under the provision of Delhi Police Punishment and appeal Rules 1980. (emphasis added)
2. The enquiry officer came to the conclusion that the charge against the Applicant had been proved. This culminated in the order dated 19.07.2006 of the disciplinary authority awarding a punishment of forfeiture of three years approved service permanently. The Applicant carried a statutory appeal against the aforesaid order, which did not find favour with the appellate authority, who rejected the appeal by order dated 31.01.2007. The findings of the enquiry officer, the order of the disciplinary and appellate authorities have been impugned in this OA filed under Section 19 of the Administrative Tribunals Act, 1985.
3. The learned counsel for the Applicant has urged that it is a case of no evidence because the charge against the Applicant being under the influence of liquor has not been proved. He would contend that merely on the basis of the certification by the doctor that the Applicant was smelling of alcohol, no inference can be drawn that he had consumed alcohol and was under its influence during his duty. It is argued that the charge of his being under the influence of liquor has only been proved by the enquiry officer on the basis of the medical certificate, without examining the doctors who had examined him at the hospital. He would further contend that the charge that a quarter bottle of rum was recovered from the pocket of his long coat is also false because his signatures were not taken on the Seizure Memo and the bottle allegedly seized from him was not sent to Forensic Science Laboratory (FSL) for testing whether it contained alcohol. Even the date on which the liquor was allegedly seized has not been mentioned and there is some cutting under the date 14.12.2003 on the Seizure Memo. He would contend that the punishment based on such evidence is liable to be set aside and quashed.
4 The Respondents have contested the cause of the Applicant by filing a reply affidavit. The learned counsel for the Respondents would state that the finding of the doctor that there is smell of alcohol (+) is a positive finding and is a substantial piece of documentary evidence. He has contended that the doctor who examined the Applicant at the RML hospital was not called before the enquiry officer for recording his statement because the doctor would be too busy in the hospital and keeping this in mind, the Respondents had also issued a circular not to call the doctors in D.E. proceedings. He would further contend that a half filled bottle of rum was recovered from the possession of the Applicant and was seized through a Seizure Memo. The officer, who prepared the Seizure Memo, did not think it necessary to take the signatures of the Applicant on that Seizure Memo. He would further contend that the FSL is already over-burdened with samples relating to heinous cases from various Police Stations from all over the country and it was not considered proper to further burden them with one more case where an independent doctor had already opined that the Applicant was under the influence of alcohol.
5 We have heard the rival contentions and perused the record placed before us. We have also perused the original record of the departmental enquiry.
6 The doctor of the RML hospital to whom the Applicant was taken on 14.12.2003 at 2.00 AM for certifying whether the Applicant was under the influence of alcohol has only recorded smell of alcohol (+). Nothing has been recorded against the other columns like `pupils, gait and speech. This Tribunal held in several cases in the past that the charge of being under the influence of liquor and consuming liquor on duty cannot merely be proved on the basis of the certificate stating about the smell of alcohol in breath. In Amichand Prasad Vs. Union of India and others, OA No.2377/2007 and Vijay Kumar Vs. Union of India and others, OA No.2360/2007, which were decided by a common order dated 11.09.2008, a Co-ordinate Bench had held that the result of medical examination conclusively proved that Amichand had consumed alcohol because of the following grounds mentioned in the medical report:
i) Smell of Breath - Alcohol in breath (++)
(ii) Gait - Reeling
(iii) Speech - Slurred In the same order in the case of Vijay Kumar, the medical report only mentioned alcohol in breath. In Vijay Kumar, therefore, we held that it could not be said that he was under the influence of liquor. In this case, reliance had also been placed on the order in OA No.2375/2007, Raj Kishore Rai Vs. Union of India and others, in which the Tribunal had made the following observation:
9. Enquiry officer has mentioned that the medical opinion has been corroborated by depositions of SW1 and SW2, as discussed under article of charge No.1, it has been observed that according to deposition of SW1, S/Shri Amichand Prasad, Vijay Kumar and Raj Kishore Rai (applicant herein), were making noisy scenes and abusing officers of the department in the corridors in the afternoon of 15.11.2002. While referring to deposition of SW2, enquiry officer mentioned that SW2, during examination, deposed that CO was apparently under the influence of liquor. We are of the considered view that deposition of SW2 cannot take precedence over the medical opinion and, as mentioned above, there is no evidence whatsoever on the record to suggest that doctor had opined that the applicant was under the influence of liquor. As mentioned above, in the certificate of medical examination of the applicant, what all is mentioned is that there was presence of alcohol in breath. 7 From the above, it is clear that we cannot hold that the Applicant was under the influence of liquor merely on the basis of the certificate that his breath smelt of alcohol.
8 In so far as recovery of half filled quarter of rum is concerned, here also the evidence is unsatisfactory. Constable Balaji, PW-1, in his cross examination during enquiry has clearly stated that Inspector Jaspal Singh, the officer who allegedly seized the bottle, did not record any statement of the Applicant and did not obtain his signature on the Seizure Memo. He has further testified that there is some text written beneath the date, which has been struck off. PW-4, SI Balbir Singh has also stated in his cross examination that he has not put any date under his signature in the Seizure Memo and that the Applicants signatures have also not been taken in the aforesaid Seizure Memo. The fact that signatures of the Applicant were not taken on the Seizure Memo has been confirmed by PW-6, Inspector Jaspal Singh. We are not persuaded by the learned counsel for the Respondents to accept the argument that Inspector Jaspal Singh did not consider it necessary to get the signatures of the Applicant on the Seizure Memo and yet it should be possible to place reliance on this Seizure Memo. It would be, in our opinion, wrong to place any reliance on this Seizure Memo in the absence of the Applicants signatures and cuttings thereon, which have been accepted by the witnesses. We have also seen the Seizure Memo dated 14.12.2003, which is placed at page 99 of the file of the departmental enquiry. There is something written under the date 14.12.2003, which has later on been scored off without any official initialing this. In our considered view, there is no evidence for this charge also.
9. However, there are two other charges against the Applicant, namely being fast asleep, while on security duty in Rashtrapati Bhawan and placing his rifle alongside the wall while asleep. From the evidence on record, these charges have been proved without any doubt.
10. The punishment, which has been given to the Applicant is for being found asleep while on VVIP duty, placing his rifle alongside the wall while asleep, being under the influence of liquor while on duty and recovery of a bottle of alcohol from the pocket of his long coat. As we have discussed above, the charges of being under the influence of alcohol and recovery of a bottle of alcohol from the person of the Applicant have, in our considered view, not been proved. It would, therefore, be appropriate for the disciplinary authority to reconsider whether the quantum of punishment is appropriate for the charge of sleeping while on duty and negligently placing his weapon alongside the wall.
11. On the basis of above consideration, the OA succeeds partly. The impugned orders are quashed and set aside. The case is remitted to the disciplinary authority for reconsidering the quantum of punishment on the basis of our observations above. There will be no order as to costs.
( Shanker Raju ) ( L.K. Joshi ) Member (J) Vice Chairman (A) /dkm/