Allahabad High Court
Krishna Kumar vs Union Of India Thru Secy. Home And Others on 15 May, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 27.03.2019 Delivered on 15.05.2019 Court No. - 34 Case :- WRIT - A No. - 67355 of 2005 Petitioner :- Krishna Kumar (since deceased and substituted by legal heirs) Respondent :- Union of India and others Counsel for Petitioner :- Rakesh Pande, K.M.Mishra, P.Pandey, R.Pandey Counsel for Respondent :- S.S.C., A.S.G.I., Arvind Kumar Goswami, K C Sinha, N.P. Shukla, R.B.Singhal, Rajesh Tripathi, S.C., V.C.Sinha Hon'ble Sudhir Agarwal, J.
1. Heard Sri Ved Prakash Singh, Advocate, holding brief of Sri Rakesh Pande, Advocate, for petitioner and Sri Arvind Kumar Goswami, Advocate, for respondents.
2. This writ petition under Article 226 of Constitution has been filed by sole petitioner, Krishna Kumar, working as Head Constable in Central Reserve Police Force (hereinafter referred to as "CRPF") assailing order dated 30.11.2004 passed by Commandant, 74 Battalion, CRPF, Varanasi (hereinafter referred to as "Disciplinary Authority") imposing punishment of dismissal and also forfeiting all medals/decoration, if any, awarded to him. It has also challenged order dated 12.05.2005 passed by Deputy Inspector General of Police, CRPF, Chandigarh (hereinafter referred to as "Appellate Authority") dismissing petitioner's appeal.
3. Earlier this writ petition was dismissed by learned Single Judge (Hon'ble Bharati Sapru, J.) vide order dated 26.03.2012 on the ground of lack of territorial jurisdiction relying on a Full Bench decision in Rajendra Kumar Mishra Vs. Union of India & Ors, 2005 (5) AWC 4542 (FB), but petitioner preferred intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952"), i.e., Special Appeal (Def.) No. 576 of 2012 which was allowed vide judgment dated 04.12.2014 and the Division Bench setting aside order dated 26.03.2012, remanded the matter for deciding writ petition on merits.
4. I may also place on record that during the pendency of this petition, sole petitioner breathed his last on 01.02.2018. Substitution application was allowed on 21.05.2018 and now his legal heirs have been brought on record.
5. Facts in brief giving rise to the present dispute are that petitioner Krishna Kumar was posted in 2004 at 74 Battalion CRPF Shivpuri, Varanasi and working as Hawaldar. A charge sheet dated 13.07.2004 was issued by Disciplinary Authority containing two charges, (i) he committed misconduct/remissness in discharge of duty in his capacity as member of Force under Section 11 (1) of Central Reserve Police Force Act, 1949 (hereinafter referred to as "Act, 1949") inasmuch he consumed liquor/alcohol while on Government duty. He is habitual of taking alcohol which is prejudicial to good orders and discipline of the Force; (ii) he created panic on 10.05.2004 when he was posted on a Polling Booth during Parliamentary Elections by resorting to unwanted fire by his carbine in intoxicated condition and caused disruption to the election process. Detailed statement of imputation of the two charges, contained in the charge-sheet is Annexure-2 reads as under-:
"Article-I That on 1/5/2004, D/74 BN, CRPF moved for GPE-04 from Naugarh, Reached Lucknow and again moved for Rampur and reached Rampur on 6/5/2004 for GPE-04. The duty of Cy Comdr was being performed by Inspector Sohan Singh. On 9.5.2004 a party consisting of ½ section each was deployed at different Polling Booths to conduct the process of voting effectively and peacefully on As such ½ section of this Coy consisting of No. 921160808 CT K. Bhoopati, No. 911272212 CT Inder Lal and No. 013520361 CT Nizam Ali under command No. 810080292 HC/GD Krishan Kumar deployed at Polling Booth no. 133, 136 and 137 at Hamid Inter College, Kotwali Road, Rampur. The Polling was started at about 0700 on 10/5/2004 hrs and was going peacefully. At about 1000 hrs, personnel on duty felt that HC/GD Krishan Kumar was under influence of liquor and trying to misbehave with the public who came to cast their votes. In the following altercation he fire one round from his service carbine which hit the ground.
As a result the polling process was temporarily suspended. No. 810080292 HC/GD Krishan Kumar did this under influence of alcohol. Subsequently, senior Officers reached at the spot and he was taken to Distt. Hospital Rampur (UP) and medically examined where it was confirmed that he had consumed liquor while on duty."
"Article-II On 10/5/2004 HC/GD Krishan Kumar with three Constable of D/74 BN/CRPF (CTK, Bhoopati, CT Indr Pal, CT Nizam Ali) were deployed at polling Booth No. 136 at Hamid Inter College Rampur for maintaining law and order duty and smooth conducting Polling of GPE-04. At about 1330 hrs HC/GD Krishan Kumar has opened fire one round from his service Carbine No. KK-0892 without any provocation/cause. The bullet fired pierced into the earth and a major incident was averted and no casualty reported. However on hearing sound of fire there was a panic in the voters personnel and polling process got disrupted half an hour. The other CTs who were near by on duty rushed there and took away the Carbine and magazine from HC/GD Krishan Kumar and kept in their custody. The City Magistrate also rushed to the spot and arranged to send him for medical check up and he was found under alcoholic influence as per medical examination report. Thus he has committed an act of misconduct and negligence of duty in his capacity as a member of the Force."
6. Disciplinary Authority gave a list of 9 documents in Annexure-3 to the charge-sheet and 5 witnesses named in Annexure-4 to the charge-sheet as under-:
Documentary evidence:
1. Copy of the report No. 14, Time 0105 pm dated 19.5.2004 Police Station Kotwali, Rampur
2. Statement of SSI V.P. Sharma dated 11/5/2004 Police Station Kotwali, Rampur
3. Statement of SI Vijender Singh dated 11/5/2004 Police Station Kotwali Rampur
4. Medical report CMO-I/C-OC. Hospital CRPF Rampur dated 10/3/2004
5. DIGP CRPF Rampur signal No. E.IX.1/04-E/Cell dated 10/5/2004
6. Deployment statement of Polling.
7. News paper cutting.
8. Three photograph of place of incident with negative.
9. Any other documents which enquiry officer may consider necessary.
List of witnesses:
1. 921160808 CT K. Bhoopati D/74
2. 911272212 CT Inder Lal D/74
3. 031520361 CT Nizam Ali D/74
4. 850874813 HC Sohan Singh D/74 5.670140366 Insp Sohan Singh D/74
7. One Arvind Singh, Assistant Commandant was appointed Enquiry Officer. During oral enquiry, he recorded statements of all the witnesses listed in charge-sheet and considered documents shown in list-3 of the charge-sheet. Petitioner was also given opportunity to participate in oral enquiry and produce his defence. His defence consisted of his reply dated 13.7.2004 to the charge-sheet. He was also given opportunity to cross-examine departmental witnesses but he did not examine witnesses at all. He was given time to produce his defence in pursuance whereto he submitted a written statement but adduced no other witness. His defence mainly consisted of; in respect to charge No.1, that he has not consumed liquor but used to take a cough syrup which contained alcohol and that was smelling when he was medically examined; with respect to charge No.2, that he fired from his Carbine pointing the barrel towards ground because some suspicious people tried to disturb peace on the Polling Station and when he tried to stop them, they became violent. To control them and to save his life as also life of general public including other CRPF personnel posted thereat, he fired.
8. Enquiry Officer submitted report dated 07.10.2004 holding both the charges proved. A copy of enquiry report sent to petitioner along with letter dated 02.11.2004 to enable him to submit reply. He was supposed to submit reply within 15 days but the said reply was submitted by him vide letter dated 20.11.2004. However, all these documents and record were examined and thereafter Disciplinary Authority passed order dated 30.11.2004 dismissing petitioner from service whereagainst petitioner preferred Statutory Appeal before Appellate Authority vide Memo of Appeal dated 23.12.2004. Appeal having not been decided expeditiously, petitioner preferred Writ Petition No. 30798 of 2005 which was disposed of vide order dated 20.04.2005 directing Appellate Authority to decide appeal by a speaking order within three month and thereafter Appellate Authority passed order dated 12.05.2005 rejecting petitioner's appeal.
9. A counter affidavit has been filed by respondents giving a brief history of entire incident. It is said that petitioner was working in 74 Battalion CRPF since 1995. A company of the said Battalion sent for Parliamentary Elections held in 2004. Company marched from Varanasi to Lucknow on 01.05.2004, whereafter it was sent for duty to Rampur on 06.05.2004. On the date of polling i.e. 10.05.2004 petitioner was assigned duty at Booth No. 133, 136 and 137, Rajkiya Hamid Inter College, Rampur. Three other constables were posted under him namely Inder Lal, K. Bhoopati and Nizam Ali. On 10.05.2004 when polling was going on, petitioner was behaving in a strange manner as if he was under the influence of liquor. When Company Commandant reached at about 12.30 hrs. to the said Polling Booth, all the Constables posted at Rajkiya Hamid Inter College, Rampur informed him about drunken condition of petitioner. Company Commandant asked petitioner to accompany him and defer duty but petitioner disobeyed and denied to go. At about 1.30 pm petitioner, in drunken condition, opened fire without any reason, from his service Carbine causing hue and cry at the Polling Booth. Polling process immediately came to a halt. Subsequently, Deputy Superintendent of Civil Police, on receiving complaint, reached the spot and after receiving complaints from Voters, present on the spot, sent petitioner for medical examination to District Hospital, Rampur. He was examined in District Hospital and thereafter in the Departmental Hospital at Group Center, Rampur.
10. For the aforesaid misconduct of opening fire during election process, without any reason, he was placed under suspension on 10.05.2004. Subsequently, pursuant to preliminary enquiry report, regular enquiry was ordered and Sri Arvind Singh, Assistant Commandant was appointed Enquiry Officer vide order dated 17.07.2004. After finding both the charges proved, petitioner has been punished with the order of dismissal and his appeal has also been rejected. Petitioner has a statutory remedy of Revision under Section 29 of Act, 1949 but the said remedy has not been availed by him. With regard to the process of oral enquiry, it is said that enquiry has been conducted in strict compliance of principles of natural justice, giving due opportunity of defence to petitioner. The fact that no civil person present at Polling Booth has been examined has no relevance since other Constables of CRPF who were present and witnessed the incident, have been examined. Petitioner was also given opportunity to cross-examine them. Petitioner has failed to adduce any appropriate defence and charges have been found proved, therefore, punishment and appellate orders are correct and in accordance with law, hence no interference is called for.
11. In the rejoinder affidavit filed by petitioner, he has simply denied the contents of counter affidavit and has reiterated what he has already said in the writ petition.
12. Learned counsel for petitioner firstly submitted that petitioner has been charged of committing misconduct under the influence of alcohol and that he has consumed liquor while on Government duty and also habitual of alcoholism. He submitted that this charge that the petitioner had taken liquor was not found proved in medical examination, therefore, the very foundation of proceedings disappears and non est. He referred to Annexure-2 to the writ petition which is copy of medical report submitted by Dr. K.K. Mehra, CMO, Hospital Rampur. Only on the basis of smelling he submitted report stating that probably petitioner has consumed liquor but at the time of testing he was not under influence of liquor. Relevant part of medical report reads as under-:
"Smell of Alcohol- Very slightly present"
"Opinion- Probably he had consumed alcohol but now not under the influence of alcohol."
13. Learned counsel for petitioner submitted that the aforesaid Medical Officer did not conduct any blood test to find out, whether there was alcohol or not.
14. Another test report (Annexure-3 to the writ petition) was submitted by Medical Officer (Emergency), District Hospital, Rampur and therein it reads as under-:
"Coordination marks- Normal slightly smell of alcoholic."
"Opinion- On the above basis, the accused has consumed alcohol but do not have effect of alcohol."
15. Learned counsel for petitioner argued that in both medical reports, there is no reliable test conducted by concerned Medical Officers and there is no categorical report that petitioner had consumed liquor or under the influence of liquor or that he was intoxicated. He said that single round fire by petitioner was duly explained and it has not resulted in injury to anybody. The allegation that this firing was done being intoxicated has not been proved hence orders, impugned in this writ petition, are patently illegal and liable to be set aside.
16. Learned Standing Counsel, on the contrary, sought to support impugned orders on the basis of reasons contained therein.
17. The entire episode has commenced when petitioner was posted at Rajkiya Hamid Inter College, in an election duty, on 10.05.2004. The list of documents relied in the charge sheet shows that the same are all dated 10.05.2004 or thereafter except a document at Item No. 4 which is a medical report dated 10.03.2004. The aforesaid document is Annexure-2 to the writ petition which is a medical report dated 10.05.2004 at 21.24 hrs. i.e. 9.24 in the night while incident said to have taken place at around 12.30 PM. Brief history mentioned in the medical report by doctor himself reads as under-:
"Brief History- as on duty at polling booth, he had fired round due to some confusion/under influence of alcohol (as stated) today around 1330 AM today (on 10.4.2004) due to snatching of his arm as per individual statement."
18. It shows that there was an attempt to snatch weapon of the petitioner whereupon he fired. The date and time mentioned in the report is dated 10.04.2004 and 13.30 AM. There is clearly some error in the timing as also the date for the reason that charges relate to 10.05.2004 while Annexure-2, the report, mentioned date as 10.04.2004 though report was submitted on 10.05.2004. Doctor has not given any concrete opinion and has said that probably petitioner has consumed liquor but he was not under influence of alcohol at the time of testing.
19. In my view, this report cannot be read as if it was certifying the fact that petitioner was under influence of liquor on 10.05.2004 when the aforesaid incident allegedly took place. The report is clearly conjectural inasmuch more reliable test like blood and urine were not conducted at all.
20. Though in the context of a criminal matter, in Bachubhai Hassanalli Karyani vs. State of Maharashtra 1971 (3) SCC 930, a three Judge Bench of Supreme Court, in a short judgment, considered the question whether charge of rash and negligent driving after taking liquor was proved or not. The medical report was based on the breathe of accused whereupon doctor said that he was smelling of alcohol, his gait was unsteady, speech was incoherent and pupils were dilated. Court also noticed that doctor admitted that the person could smell of alcohol without being under the influence of drunk. No urine test was carried out and though blood was sent for chemical analysis but no report was produced. In the circumstances, Court said that it cannot be said that there was an evidence to prove the fact that the accused was drunk at the time of accident.
21. A Division Bench of this Court has followed the aforesaid decision in Shiv Raj Singh Vs. State of U.P. and others 2018 (5) ADJ 679 and held that without urine and blood test, no conclusive report can be given for consumption of alcohol.
22. No doctor was examined in oral enquiry to prove medical condition of the petitioner that he was under the influence of liquor. Both the reports only use the word "probably" and clearly say that he was not under the influence of alcohol. Petitioner took the defence that he was taking a cough syrup, having alcohol contents, but this aspect has not been examined at all and it has not been found that his defence was incorrect. The witnesses have said that three Constables who were present at Polling Booth, complained that petitioner was under the influence of liquor but they had not seen him drinking. Only from smell, gait and his behaviour they formed opinion that he was drunk. It is said that he was misbehaving with voters and complaints were coming but no such complaint has been placed in evidence. With regard to allegation of drinking liquor on 10.05.2004, I therefore find no evidence to prove the charge.
23. In a departmental enquiry, charge is not supposed to be proved beyond reasonable doubt like a criminal case but still a person cannot be punished on surmises and conjectures as held by a Constitution Bench in Union of India Vs. H.C. Goel AIR 1964 SC 364 observing as under:
" ... mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as must to regular criminal trials as to disciplinary enquiries held under the statutory rules."
24. Therefore, in the departmental proceedings also, there must be some evidence which may prove reasonably that incumbent is guilty of misconduct and a person of ordinary prudence must come to this conclusion on the basis of material on record.
25. With regard to firing by petitioner at Polling Booth, voters present at Polling Booth have not made any complaint and none has deposed to prove the same.
26. Almost in a similar circumstance in Munna Lal Vs. Union of India and others (2010) 15 SCC 399 which is a 3-Judge Bench judgment of Supreme Court, a similar allegation was made against Munna Lal, a Sub-Inspector of Police posted at Indira Gandhi International Airport, New Delhi that he was found in drunken condition while on shift duty from 07.00 hrs. to 13.00 hrs. at the Indian Airlines Cargo gate. The superior officer felt smell of alcohol and suspected that he was in drunken condition. Doctor found other conditions, namely, speech, pupil etc. normal, pulse and B.P. Normal, but said that there was an element of doubt about alcohol on account of mild smell of alcohol. Court held that evidence was not satisfactory to prove charge of drunkenness and in absence of any positive evidence, it cannot be said that charge is proved satisfactorily. Court also said:
"In the absence of sufficient proof, the disciplinary authority should not have imposed such penalty. Therefore, the punishment imposed was illegal .... "
27. In the present case, with regard to incident of firing, entire story is founded on statement of Constables Inder Lal, K. Bhoopati and Nizam Ali. Inquiry report shows that K. Bhoopati and Nizam Ali were present on Booth No. 133 and Inder Lal was on Booth No. 137. On Booth No. 136, petitioner was present. Inquiry Officer has relied on statement of Nizam Ali that from Booth No. 133, remaining two Booths were clearly visible and he noticed no disturbance on Booth No. 136. No such statement was given by K. Bhoopati, who was also present on Booth No. 133. With regard to defence taken by petitioner that there was an attempt to disturb peace on account whereof petitioner fired, no Officer on election duty posted on Booth has been examined and at Booth No. 136 no other Constable was present. Nizam Ali, posted as Booth No. 133, must be concentrating on his Booth; or he was taking note of other Booths is not very clear. In fact, from the kind of evidence which is available on record, it is difficult to hold that evidence is sufficient to hold petitioner guilty of both the charges. In my view, Enquiry Officer has more proceeded on conjectures than to base his findings on positive evidence available before him. Petitioner has been held guilty on suspicion and conjectures which is not permissible in view of law laid down by Constitution Bench judgment in Union of India Vs. H.C. Goel (supra). In these circumstances, I find it difficult to uphold the orders impugned in this writ petition.
28. I may also notice one more aspect. What conduct a member of CRPF has to observe is not specifically detailed in Act, 1949 or Central Reserve Police Force Rules, 1955 (hereinafter referred to as "Rules, 1955"). On the contrary, Rule 102 provides that the condition of service in respect to other matters, provision made for the Officers of the Government of India of corresponding status shall be applied. This brings in Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as "Conduct Rules, 1964") and Rule 22 thereof relating to consumption of 'intoxicating drinks and drugs' reads as under:
"22. Consumption of intoxicating drinks and drugs A Government servant shall -
(a) strictly abide by any law relating to intoxicating drinks or drugs in force in any area in which he may happen to be for the time being;
(b) not be under influence of any intoxicating drink or drug during the course of his duty and shall also take due care that the performance of his duties at any time is not affected in any way by the influence of such drink or drug; (bb) refrain from consuming any intoxicating drink or drug in a public place;
(c) not appear in a public place in a state of intoxication;
(d) not use any intoxicating drink or drug to excess.
Explanation: For the purposes of this rule, ''public place' means any place or premises (including a conveyance) to which the public have, or are permitted to have, access, whether on payment or otherwise."
29. Clause (a) is not applicable in the present case since there is no charge that petitioner was violating any law relating to intoxicating drinks or drugs in force in the area concerned. It is also not the case that he was consuming intoxicating drink or drug in public place, therefore, clause (bb) is also not applicable. Now the only provision which, at the best, can be stressed in this case, are, clauses (b), (c) and (d). Clause (d) shows that there is no bar that incumbent may not have some intoxicating drink or drug but it says that he shall not take the same in excess. Clause (c) provides that he should not appear in a public place in a state of intoxication and clause (b) provides that he should not be under influence of any intoxicating drink or drug during the time of his duties and his duty not affected in any way by the influence of such drink or drug. The aforesaid Rule nowhere, therefore, talks of a complete bar that a member of Force shall not come to attend his duties if he has taken some liquor or intoxicating drink or drug before coming to duty. Even the use of drink and drug is permitted but prohibition is against excess, or to the extent efficient discharge of duty is affected otherwise.
30. In a case before Andhra Pradesh High Court in A. Subramanyam Vs. Prohibition and Excise Inspector, Tirupathi 2000 (2) APLJ (HC) 266, a learned Single Judge (Hon'ble Vaman Rao, J.) had and occasion to consider, in reference to Section 36 (1) (d) of Andhra Pradesh Excise Act, 1968, as to what constitute 'drunkenness'. Court said that what is prohibited is 'drunkenness' and not mere 'drinking'. There is a vast difference between 'drinking' and 'drunkenness'. Referring to Oxford Dictionary, Court observed that 'drunkenness' is the noun derived from the word 'drunk' and 'drunk' is given meaning as 'render incapable by alcohol', 'a habitually drunk person'.
31. Similarly, in Black's Law Dictionary, the term "drunkenness" is defined as the condition of a person whose mind is affected by the consumption of intoxicating drinks; the state of one who is 'drunk'; the effect produced upon the mind or body by drinking intoxicating liquors to such an extent that the normal condition of the subject is changed and his capacity for rational action and conduct is substantially lessened".
32. Thus, a person found merely 'drinking' liquor cannot be said to be in a state of 'drunkenness' unless drinking resulted in some perceivable change in his conduct, which may be considered other than normal.
33. Under Rule-22 of Conduct Rules, 1964, I do not find that except of prohibiting taking of liquor in public, there is any bar that a Government Servant may not take drink in private and thereafter attend his duty. The only restriction and prohibition is that such drink must not affect his official duties and should not be in excess.
34. In the present case, both the medical reports talk of normal behaviour, normal condition and conduct, and also a very less smell but clearly show that he was not under influence of liquor at the time of medical test. One test was conducted within a very short time after the incident and therein also the situation is same. Therefore, to my mind even allegation of 'drunknness' levelled against petitioner is not consistent to what has been contemplated in Rule 22 of Conduct Rules, 1964 and it appears that authorities have understood the same in a different manner which is not provided in Rules and is not a part of Conduct Rules, 1964. Thus also punishment imposed upon petitioner for something which is not consistent with Conduct Rules is clearly unwarranted and illegal.
35. In view of discussions made hereinabove, the orders impugned in this writ petition cannot be sustained.
36. The writ petition is allowed. Impugned orders dated 30.11.2004 and 12.05.2005 are hereby set aside. Petitioner shall be entitled for all consequential benefits.
Dt. 15.05.2019 PS