Judgment:
Gopal Krishan Vyas, J.
1. Heard learned Counsel for the petitioner.
2. In this writ petition, the petitioner seeks to challenge order Annex. P/2 dated 31.1.1994 passed by the Superintendent of Police, Sriganganagar as well as order Annex. P/3 dated 19.4.1995 passed by the Deputy Inspector General of Police, Bikaner Range, Bikaner. During the pendency of the writ petition, petitioner Narendra Pal died and vide order dated 14.1.1999 application for substitution of the legal representatives of deceased petitioner was allowed and (1) Smt. Narendra Kumari w/o late Narendra Pal, (2) Pawan Kumar s/o Late Narendra Pal and (3) Manju, (4) Kiran and (5) Geeta Daughters of late petitioner Narendra Pal were substituted in place of the deceased petitioner.
3. While posted at Police Lines Sriganganagar as Head Constable in the Rajas-than Police under the respondents, the petitioner was charge-sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter, 'the CCA Rules') on 11.02.1993. Alongwith the charge-sheet, memorandum was also served upon the petitioner whereby he was asked to file his reply within 15 days. The petitioner filed his reply on 4.2.1993 and denied the allegations levelled against him. According to the charge-sheet the following allegations were levelled against petitioner Narendra Pal:
1 Jh ujsUnziky ,y,p-lh- ua 780 ij vkjksi yxk;s x;s gS fd vki Jh ujsUnziky dkfu 780 iqfyl ykbZu Jhxaxkuxj esa dkfu- ds in ij dk;Zjr gS A tgka ls vkidks tqfMf'k;y xkMZ esa fnukad 2-12-92 dks yxk;k x;k Fkk A vki vius lkFkh;ksa ds lkFk eqfYte lrukeflag fuoklh lyseiqjk o ek.kkflag iq= lqtuflag fuoklh iVVh dks tsy Jhxaxkuxj ls vnkyr Jhxaxkuxj es is'kh gsrq yk;s A vkius lrukeflag o ek.kkflag eqfYteku dks vkidh fgjklr esa o vkius viuh fgjklr es gksrs gq, Hkh bl nksuks dks 'kjkc ihus nh o vkius Hkh muds lkFk feydj 'kjkc ih tcfd vki egRoiw.kZ M~;wVh ij Fks A
2 vki eqfYte lrukeflag o ek.kkflag dks vnkyr ls is'k djus ds fy, ys tk jgs FksA rc vnkyr dsikl eqLrxhl ikVhZ ds j.kohj dqekj] nkSyrjke [ksMs Fks A ftl ij eqyfteku us geyk dj fn;k o muds lkFk ekjihV dh A vki bl eqfYteku dks geyk djrs le; dkcw esa ugh j[k lds A ftlds dkj.k ?kVuk gqbZ A D;ksfd vkius 'kjkc ih j[kh Fkh A
3 j.kohjdqekj dh f'kdk;r ij vkidk eqvk;uk 'kjkc djok;k x;k rks vki 'kjkc ih;s gq, ik;s x;s A
4. The petitioner has disclosed in the writ petition that before framing the charges against him a preliminary inquiry was conducted and, during the course of preliminary inquiry, statements of some persons were recorded. These persons were later on produced as witnesses in the regular inquiry. It is submitted that the said preliminary inquiry report was considered against the petitioner during the regular inquiry and the preliminary inquiry report was exhibited as Ex. P/6 in the inquiry. The petitioner submitted that copy of the said inquiry report as well as copies of the statements of witnesses was not provided to the petitioner.
5. It is further stated that after completion of the regular inquiry, the inquiry officer arrived at the finding of guilt against the petitioner without recording his own finding on each charge as per Sub-rule (7) of Rule 16 of the CCA Rules. The petitioner alleged in the writ petition that the conclusion reached by the inquiry officer is not supported by reasons and the inquiry officer did not consider the statements of defence witnesses and merely took note of the written-statement filed by the petitioner.
6. It is submitted by the petitioner that the department examined P.W. 1 Inderjeet Punia, PW. 2 Ranveer Kumar, PW.3 Daulat Ram and PW. 4 Bhanwar Singh and, in defence, the petitioner led evidence of DW. 1 Hari Singh, Constable who was with him at the relevant time on judicial guard duty, DW. 2 Jagroop Singh, who was also on judicial guard duty and DW. 3, Dr. Dilbag Singh, from who the petitioner was taking medical treatment. According to the petitioner, at the time of arriving at the final finding in the inquiry, the inquiry officer did not at all consider the statements of the defence witnesses. The contention of the petitioner is that no witness was produced by the department to prove the preliminary inquiry report which was exhibited by the department as Ex. P.6 in the regular inquiry and was considered by the inquiry officer at the time (sic) at the final conclusion. The petitioner, therefore, contends that it cannot be said that in the said inquiry the prosecution has proved its case for alleged misconduct against the petitioner.
7. It is submitted by the petitioner that the finding on charge No. 1 is without any basis and without any evidence. According to him, Dr. Inderjeet made report only on the basis of smell that he had consumed liquor. P.W. 1 Dr. Inderjeet categorically stated in his evidence that only on the basis of smell coming out from the mouth of the petitioner he made the report of the petitioner having consumed liquor and, in fact, no tests were carried out. At the inquiry, this witness of the department did not prove any test report and himself stated that though blood was taken for test, but there being no letter from the inquiry officer of the preliminary inquiry, he did not get the blood tested to find out percentage of alcohol. In his cross-examination, PW. 1 Dr. Inderjeet stated thus:
eSus ujsUnziky dk [kwu ijh{k.k gsrq fy;k Fkk ijUrq tkap gsrq izkFkfed tkap djus okys vf/kdkjh dh vksj ls dksbZ i= izkIr ugh gksus ds dkj.k eSus [kwu esa ,ydksgy ds izfr'kr dh tkap ugh dh A
The petitioner's submission is that in the absence of any report with regard to percentage of alcohol the prosecution cannot claim to have proved its case against the petitioner because it has categorically come on record by way of evidence that the petitioner was being medically treated for his protracted illness. Even P.W. 1 Dr. Inderjeet has further stated in his cross-examination that there are numerous medicines which contain as an essential ingredient a quantity of alcohol and a higher does of the medicine may make it difficult to ascertain whether it is medicine or alcohol consumed by the person.
8. It is further contended by the petitioner in the writ petition that...no evidence on record or even whisper by any witness that they saw the petitioner and two accused consuming liquor while they were in the custody. Therefore, in the absence of any direct evidence the inquiry officer has committed error while coming to the conclusion that charges levelled against the petitioner Narendra Pal are proved.
9. Learned Counsel for the petitioner also argued that there is no independent witness in the inquiry, more so, it is admitted fact of the case that so-called complainant P.W. 2 Ranveer and PW. 3 Daulat Ram made any complaint in the Court with regard to consuming liquor by the petitioner when they were brought to Court. If any incident took place outside the Court where the trial was being proceeded with, obviously complainants would have made a complaint to the concerned Magistrate. So also, if there was any truth in the allegation, they were to file a complaint or application before the Court of the Chief Judl. Magistrate, Sriganganagar before whom the petitioner produced the undertrials Satnam Singh and Mana Singh; but, no complaint or application was filed in the Court with regard to any incident having taken place outside the Court.
10. It is vehemently urged by learned Counsel for the petitioner that in the facts and circumstances of the case the finding arrived at by the Inquiry Officer cannot be treated to be trustworthy. Learned Counsel for the petitioner also invited attention of the Court towards the judgment of the Supreme Court to convass that in the absence of cogent and relevant evidence coming on record no conclusion as to prosecution having proved the charge can be reached.
11. It is also contended by learned Counsel for the petitioner that copy of the preliminary inquiry, said to have been conducted and which was taken into consideration for the purpose of arriving at the final conclusion by the regular inquiry Other was not supplied to him. Likewise though it was exhibited in the inquiry as Ex. P/6 but who has proved Ex. P/6 is nowhere mentioned in the inquiry report therefore, the whole inquiry is vitiated and against the principles of natural justice. It is also contended by learned Counsel for the petitioner that defence witnesses have clearly stated before the Court that the petitioner was ailing and under medical treatment. Further DW Dr. Dilbagh Singh specifically mentioned in his statement that petitioner was continuing under his treatment and made it clear that some medicines necessarily contain alcohol having propensity of intoxication and, therefore, a higher does of the medicine may develop effect of intoxication. This statement of the defence witness is corroborated by cross-examination of the departments witness Dr. Inderjeet. Therefore, the finding of the guilt is totally perverse and the charge against the petitioner is not proved.
12. After completion of the inquiry, the report of the inquiry was communicated to the Disciplinary Authority, Superintendent of Police, Sriganganagar and the Disciplinary Authority by the impugned order Annex. P/2 dated 31.1.1994 inflicted a penalty of withholding of three grade increments with cumulative effect.
13. The case set out by the petitioner reveals that having all as above taken place, all of a sudden, the petitioner received notice from the Deputy Inspector General of Police, Bikaner Range, Bikaner under Rule 32 of the CCA Rules whereby the petitioner was called upon to show cause why the penalty inflicted upon him should not be enhanced. In pursuance of the said notice dated 13.4.1994, the petitioner filed his reply and he was personally called on 5.4.1994. After hearing the petitioner, the Deputy Inspector General of Police, Bikaner Range, Bikaner passed order dated 19.4:1995 whereby the petitioner was dismissed from service. Hence the writ petition.
14. With regard to the enhancement order, it is contended by learned Counsel for the petitioner that though under Rule 32 of the CCA Rules power vests in the higher authority to review the punishment and pass order for enhancement; but, in this case, even charges were not proved to hold the petitioner guilty attracting any major punishment. Learned Counsel for the petitioner vehemently contended that though charge of intoxication while on duty is alleged against the petitioner but there is no suggestion that the accused persons who were in his custody and whom the petitioner produced before the Court absconded due to the petitioner's drunken condition. It is contended that even one accused person alongwith other accused who allegedly shared alcohol with the petitioner was declared by the doctor as not drunken.
15. The sum and substance of the submissions made on behalf of the petitioner in this case is that on the one hand, the inquiry is vitiated on more than one ground and, on the other hand, the finding of the inquiry officer is perverse there being no cogent evidence to hold the charges proved against the petitioner. It is further the case of the petitioner that disproportionate punishment has been inflicted upon the petitioner. According to the petitioner, in the facts and circumstances of the case, the petitioner's case does not even attract major penalty what to say of a penalty of dismissal from service.
16. Per contra, learned Counsel for the State contended that the charges levelled against the petitioner is with regard to consumption of alcohol by a police guard when he was on duty in the Court. Learned Counsel for the State contends that charges have been duly proved having taken into consideration all relevant record for arriving at the finding of guilt by the inquiry officer. He submitted that there is no provision for supply of the copy of report of the preliminary inquiry. Learned Counsel for the State urged that looking to the image of the police force of the State, the higher authority has rightly exercised power under Rule 32 of the CCA Rules and concluded that petitioner cannot be continued in the police force after such grave dereliction of duty and misconduct have been proved against him. It is submitted by learned Counsel for the State that no interference is warranted in the present case and the writ petition deserves to be dismissed.
I have carefully considered the submissions and perused the record.
17. Upon perusal of the order passed by the Deputy Inspector General of Police it is revealed that the authority has not discussed how, in the facts and circumstances of the case, the penalty inflicted by the Disciplinary Authority falls short of the petitioner's deserts for his dereliction and misconduct. From the order of the higher authority, the only reflection is that merely because the petitioner was member of police force, therefore, harsher punishment is required to be imposed. However, while doing so, the Deputy Inspector General of Police ignored material aspects of the matter and the fact that on the record there is no cogent evidence that the petitioner and accused persons took alcohol together before any person. In this case, there is no independent witness except complainant Ranveer Singh and Daulat Ram. More so, it has come on record by oral testimony of the defence witnesses that no such incident took place.
18. It is true that so many grounds have been raised by the petitioner challenging the validity of the impugned orders Annex. 2 and Annex. 3 but, it is also one of the facts that after inflicting penalty of withholding three grade increments with cumulative effect the petitioner late Narendra Pal did not choose to file appeal against the order of penalty passed by the Disciplinary Authority; meaning thereby, he was satisfied and he did not raise his voice against that penalty. However, when the higher authority viz., the Dy. Inspector General of Police, Bikaner Range, Bikaner enhanced the punishment then alone the petitioner is finding fault with the inquiry. It is also one of the aspects of the matter that in pursuance of the notice issued to him under Rule 32 of the CCA Rules, the petitioner himself filed his reply which is on record as Annex. R/2 in which he has prayed that he has already suffered a penalty of withholding of three grade increments with cumulative effect, therefore, the penalty may not further be enhanced. He has not raised any grounds in the reply Annex. R/2 that the finding of the inquiry officer is perverse or not based on cogent evidence. The petitioner's only plea before the higher authority in pursuance of the notice issued to him is that he is a low-paid employee and penalty imposed by the Disciplinary Authority is sufficient punishment.
19. In this view of the matter, in my opinion, now at this stage, the petitioner cannot be permitted to raise any voice against the finding of the inquiry officer though, 1, certainly it is revealed before this Court that there are lacunae in the inquiry and finding of the inquiry officer suffers from perversity for more than one reason. Despite the fact that the petitioner is estopped by his own conduct from raising the questions now before this Court having acquiesced into the order of the Disciplinary Authority, nonetheless the very facts necessarily come in the way of the authority who chose to exercise power under Rule 32 of the CCA Rules. Thus, it is manifest in the facts and circumstances of the case that the higher authority, respondent No. 1 proceeded to exercise the power conferred upon him without application of mind. It is expected of the authority who proposes to enhance the punishment to consider the matter in its entirety and satisfy itself as to the reasonableness of the finding of the inquiry officer as well as Disciplinary Authority in the facts and circumstances of the case. I find from the material on record that preliminary inquiry report was exhibited as Ex. P/6, however, who has exhibited and proved it nowhere finds mention in the inquiry report though the same has been considered by the inquiry officer against the petitioner. Further, from perusal of the inquiry report it is obvious that statements of the defence witnesses have not been properly taken into consideration by the inquiry officer. It la admitted fact on record that though charged of intoxication, blood of the petitioner was not subjected to test for ascertaining presence of percentage of alcohol In the blood. Where the authority chooses to exercise power under Rule 32, It is not relevant that the derelict accepted the penalty imposed by the Disciplinary Authority; but, the higher authority exercising power under Rule 32 must take full stock of entire facts and circumstances of the case and appreciate the evidence in right perspective before proceeding to enhance the punishment. The fact of acquiescence by the petitioner neither comes in way of the higher authority nor by itself aids it to reach to the conclusion that the punishment requires to be enhanced,
20. In my considered opinion, the order of the Disciplinary Authority, in the facts and circumstances of the case, was sufficient punishment and there did not exist good grounds for enhancement of the punishment imposed by the Disciplinary Authority. There is no allegation against the petitioner that due to drunken state of the petitioner the accused in the custody attempted to abscond. In the circumstances, the order passed by the respondent No. 1 enhancing the punishment is neither just and proper, its validity cannot be sustained in law. The same deserves to be quashed and set aside.
21. Consequently, the writ petition is partly allowed. The order Annex. 2 passed by the Disciplinary Authority is maintained. But, the order of the respondent No. 1, Deputy Inspector General of Police, Bikaner Range, Bikaner dated 19.4.1995 (Annex. 3) passed in exercise of power conferred by Rule 32 of the CCA Rules is quashed and set aside. As a result, the respondents are directed to treat the petitioner late Narendra Pal in service with effect from 19.4.1995 till the date of death/superannuation and the legal heirs of petitioner late Narendra Pal are held entitled to all consequential benefits, including arrears of salary from 19.4.1995 to 14.1.1999 when late Narendra Pal died and retiral benefits and pension according to rules.
22. This order will be complied with by the respondents within a period of three months from today, failing which, the L.Rs. of late petitioner Narendra Pal shall be entitled to interest upon the amounts due to them @ 6% p.a. for delayed payment.
23. There shall, however, be no order as to costs.