Shri V.S. Bhanse Constable R.P.F. Dog Squad Vs. Union of India Through Its General Manager and Others - Court Judgment

A.B. Chaudhari, J.

1. Heard. Rule. Rule returnable forthwith.

Heard finally by consent of the learned Counsel for the rival parties.

FACTS:

2. By the present petition the petitioner has put to challenge the order No.282/2009 dated 12.12.2009, issued by the appellate authority, imposing higher punishment of retiring the petitioner compulsorily from service so also the order No.101/2011 dated 27.4.2011 of punishment by which the punishment for stoppage of three increments for three stages for three years with cumulative effect was imposed on the petitioner.

3. The petitioner was working as a member of Dog Squad BPQ (Nagpur Division) at Ballarshah and was the handler of the dog by name 'Rover'. The petitioner has been in service for the last 20 years in the Police Force and Railway Protection Force (RPF). On 27.7.2009, his duty was from 8:00 hours to 16:00 hours, when the two dogs 'Rusty' and 'Rover' were taken by him in the ground for training when both of them were playing and fighting merrily. The dog 'Rover' during that span of merry-making dashed with cement tiles and fell down and then ran towards the kennel. The petitioner went to the kennel and found that there was no bleeding from his head/neck and therefore, he closed the kennel. Thereafter, Constable Shri Wankhede came and the petitioner told him about the incident and both of them took the dog outside the kennel and found a small injury near the head but without bleeding. He then contacted Dr. Bansod on phone, who advised him to apply the Providine tube, which he brought from the market and applied to the injury of the dog. Thereafter, he went on his duty. The dog was examined by Dr. Bansod and was treated thereafter at Nagpur. The statement of Dr. Bansod was recorded on 7.10.2009 i.e. after the chargesheet was served on the petitioner on 21.8.2009 by the Security Commissioner, CIB Headquarter. The article of charge against him was that on the date of incident he mishandled the dog 'Rover', which resulted into a wound near the head. That the constable Shri A.R. Wankhede noticed the wound mark on the head of the dog and told about it to the petitioner when the petitioner Shri Bhanse informed him that the wound was because of fall of the flooring tiles on the dog and thus the petitioner had fabricated the story and suppressed the truth as to how the dog received injury and had thus misled the authorities which was unbecoming of a member of a disciplined Force, namely Railway Protection Force. The petitioner filed his reply and thereafter the Inspector/RPF/HQ/Stores i.e. Equiry Officer recorded a finding on the charge that he mishandled the dog 'Rover' due to which he suffered a deep cut near the head. Thus, the petitioner had failed to take proper precautions in handling the dog 'Rover' and performing his duty. He also failed to intimate the incident to his superior officers and did not make any entry in the daily diary about the incident. On the strength of the said finding, the petitioner was punished by an order No.282/2009 dated 12.12.2009 by the authority which imposed the punishment of stoppage of increments as aforesaid. The petitioner then preferred an appeal before the appellate authority but the appellate/reviewing authority issued him a show-cause-notice dated 31.5.2010 as to why the punishment awarded to him should not be enhanced since there was deliberate attempt on the part of the petitioner in misleading the authorities. The petitioner filed his reply on 15.1.2010 and explained that immediately he had applied Providine tube as first aid and thereafter sent the dog for further treatment and the information was given by Shri Wankhede to the superiors since he had inspected the dog with Shri Wankhede. The effect of the punishment of withholding of three increments was severe, putting him to heavy financial loss and at any rate the major punishment should not be imposed. The reviewing authority, however, rejected his contention and imposed the punishment of retiring him compulsorily from service under Rule 217 of the Railway Protection Force Rules, 1987 by order dated 22.7.2010. Hence, this petition.

SUBMISSIONS:

4. In support of the petition, learned Counsel for the petitioner vehemently argued that the petitioner has served with the Police Force for about 20 long years and there has been no complaint against him in the past. As a trainer of the dog, he passed the training course with flying colours, which is evident from the certificate issued by the concerned Commandant from R.P.F. Dog Breeding-Cum-Training Centre 6 BN, RPSF, Delhi. He was given ‘A’ grade and ‘X’ grade towards performance and instructional ability respectively, which is above average and below outstanding. The respondents did not at all prove the charge by any positive evidence and merely on suspicion, the petitioner has been punished by them. According to him, Dr. Bansod, who examined the dog also stated that size of the injury was only 2 centimeters and not 2 inches as alleged and Dr. Bansod did not depose anywhere that there was any bleeding injury though he stated that he found 2 centimeters deep cut and therefore, applied local anaesthesia and two stitches on the wound. He stated that due to fall of 10_ 15 tiles, the injury was not possible as there was no other injury marks on the dog. The learned Counsel then argued that it is an admitted fact that the dog has been smoothly working after the incident but the fact remains that the petitioner along with five family members has lost the bread for his family. According to the learned Counsel for the petitioner, the dog was running here and there at the time of incident and while playing with the other dog, namely 'Rusty', it came in contact with the tiles and received small injury. The learned Counsel went on to argue that the authorities, however, made mountain out of a mole which was wholly unjustified. According to him, nothing was proved by the Department against the petitioner much less the charge that was framed against him. Even the charge about not informing the superiors about the injury was not proved since Constable Shri Wankhede was not examined and at any rate Constable Shri Wankhede had informed the superior officer in the presence of the petitioner. There was nothing serious about the injury and the petitioner had purchased the tube as per advice of the Doctor and applied it to the injury received by the dog. He, therefore, submits that the petitioner deserves to be exonerated of the charges levelled against him with full back wages and with continuity of service.

5. Per contra, learned Counsel for the respondents vehemently opposed the petition and argued that the dog is a Government property and its care has to be taken by the dog-handler with utmost care and caution and he cannot be irresponsible while handling the dog. In the instant case, the petitioner did not inform the superiors about the incident in which the dog was injured. Not only that the petitioner falsely explained about the injury as has been found by Dr. Bansod that the said injury was not possible by falling of 10 to 15 tiles, which story was cooked up by the petitioner. Thus, the defence of the petitioner was found to be false. That being so, the charge was clearly proved against him, which was corroborated by the statement of the Doctor. According to him, the RPF is a disciplined Force and dog is an important part of the Force for detection of crime and so on and so forth. The petitioner was duty bound to take care of the dog but he failed to do so and therefore, the punishment which is imposed upon him is legal, correct and proper and should not be disturbed in extraordinary writ jurisdiction of this Court in view of the settled principles regarding judicial review of such action. He, therefore, prayed for dismissal of the writ petition.

CONSIDERATION:

The prologue :

As to the relationship of dog and human it is a fact that the dog is humanity's oldest companion. Human and dog came together thousands of years ago for mutual comfort and slowly developed the interdependence seen today-human's caring for the dog in return for continuing companionship and a great variety of working functions. So close has the association of dog and human become that there are now probably only two breeds of truly wild dogs left, the Cape Hunting Dog and the Australian Dingo. As to the working dogs from the earliest days, humans have considered their dogs to be not just companions but working allies. The dog probably came into the camps of early humans for scraps of food, the comfort of association and warmth. But it soon became apparent to the dog's host that here was a guard, warning against strangers, and on occasion, actually attacking intruders with whom it was unfamiliar. Dogs have worked ever since. Their trainability has led to them being used over the centuries in roles varying from the simple barking burglar alarm to the detector of the contraband and explosives and in wars.

6. In this writ petition we are called upon to decide whether the petitioner who was the companion of the dog 'Rover' for considerable period acted negligently or recklessly due to which dog 'Rover' received alleged serious injury and thereby causing dent to the 'close association' of dog and human-host.

7. We have perused the entire record carefully. We have heard learned Counsel for the rival parties. We have seen the impugned orders passed by the authorities. It is not in dispute that the petitioner passed the training course for dog training with flying colours which is evident from the certificate issued to him. It is also not in dispute that for the last 20 years he has been working in the Police Force and as a dog-handler/trainer since about 5 years and that there has been no complaint of any misconduct on his part nor there is any such past record. It is not in dispute that the dog did not have any bleeding injury. In fact, Dr. Bansod who was examined did not say a word that the injury received by the dog was a bleeding injury. We have carefully examined the record to find out whether the injury was really 2 inches deep as held by the reviewing authority, who imposed harsh punishment of retiring the petitioner compulsorily from service. We find from the admission given by the respondents in their written submissions dated 22.2.2012 on affidavit of Security Commissioner-Cum-Staff Officer to Chief Security Commissioner that the injury was only 2 centimeters and mention of 2 inches deep injury in the impugned order, imposing the said punishment, was a typographical error. We quote the said portion from the reply on record thus:

“It is submitted that the injury caused to the dog was 2 Centimeter which was certified by doctor. But while disposing of the appeal of the petitioner, the Appellate Authority in the order due to typographical error and mentioned injury as 2 inches deep injury.”

8. It is thus clear and confirmed by the Department itself that the injury received by the dog was only 2 centimeters and not 2 inches. There was no assertion by the respondents that the injury was bleeding injury. We, therefore, draw two conclusions, namely that the injury was only 2 centimeters and was not a bleeding injury. The finding recorded by the appellate/reviewing authority however reads thus:

“I have gone through the said representation of appellant. Appellant has taken plea that on 27.7.2009 at about 15.30 hrs. during the course duty dog Rover had sustained injury due to falling of tiles on him but during the DAR enquiry Veterinary Doctor of NGP pointed out that dog 'Rover' sustained injury on head was incised wound about 2 which could have been caused by/inflicted by sharp object.

Moreover, Dr. Bansode has stated in his statement that he examined dog 'Rover' on 28.7.2009 at about 8 hours and found that injury/wound of the dog 'Rover' was 18 to 24 hrs. old. From the evidence it is very clear that the injury must have been caused between 08.00 hrs. to 14.00 hrs. on 27.7.2009. From the duty roster it was found that appellant was on duty on 27.7.2009 between 08.00 hrs. to 14.00 hrs..

From the evidence of the Veterinary Doctor it is crystal clear that injury caused to dog 'Rover' was not due to falling of tiles but was caused by some sharp object during proper duty of the appellant. He had failed to inform his superior officers and did not make entry on Roznamcha but he tried to give false and misleading information to the administration which cannot be tolerated. Hence plea is rejected.

Appellant has taken second plea that what had happened i.e. injury of dog 'Rover' was not so serious and he is being framed. This plea of the appellant is also not tenable because ‘two inches incised wound’ on head of dog 'Rover' is of serious nature which might have lead to the death of dog.”

This finding shows as if the petitioner had pierced a sharp object at the place of injury to the dog causing incised cut of 2_ deep. In our opinion, had the injury of 2 inches deep, the same would have resulted into heavy bleeding and then such injury would have been really very serious. Therefore, even if his defence of fall of 10-12 tiles is not believable that does not mean that the said part of the charge was proved.

9. Thus, on the suspicion that the petitioner must have inflicted 2 deep incised wound on the head of the dog by sharp weapon, the petitioner has been punished. But factually even the suspicion is without any basis which is clear from the aforesaid admission in the reply. It appears that the reviewing authority took it in its head as is clear from the show-cause-notice as well as impugned order that the petitioner was being left out by a smaller punishment for a very serious injury of 2 inches deep caused by the petitioner by a sharp object into the head/neck portion of the dog. It is under that rage, it appears that the axe of compulsory retirement has fallen on the petitioner. But from the record, we find that there is neither any bleeding injury nor the injury deep upto 2 inches. If the injury is of 2 centimeters without any bleeding, the version that it must have been caused because of the dog coming into contact with tiles cannot be thrown away outright. But since the Department has not examined any person to substantiate the claim that it is the petitioner who must have or had inflicted the injury to the dog and since there is no reason as to why the petitioner would have inflicted injury on the dog with whom he has association for such a considerable long duration, there was absolutely no reason to hold him guilty of the first part of the charge. It is well settled that even in the case of Departmental enquiry by merely pointing out a needle of suspicion, a person cannot be punished unless by some evidence a little or enough a finding of guilt can be arrived at. We, therefore, hold in the above factual background that there is absolutely no basis to hold that the petitioner either caused injury to the dog or had failed to take proper precaution in handling the dog 'Rover' and failed in performing his duty towards the dog. We also hold that the petitioner could not be held guilty of mishandling the dog 'Rover' due to which it allegedly suffered a deep cut on the head. It is further seen in this context that the statement of the petitioner that he immediately talked to the Doctor, who told him to apply the tube, namely Providine and by spending Rs.100/-, he brought the tube and applied the same to the dog immediately as first aid and thereafter sent the dog for further treatment could not be simply ignored. This conduct on the part of the petitioner does not go hand-in-hand with the case of the Department. We, thus, hold that the petitioner did not betray the belief that 'the dog is humanity's oldest companion'.

10. As regard the second part of the charge, we find that the petitioner himself admitted before the Enquiry Officer that he did not himself inform the superiors about the incident but had asked Constable Shri Wankhede to inform the incident nor did he ensure whether the information had been conveyed to the senior officers. On his admission, the Enquiry Officer had recorded a finding that he failed to intimate the superior officers and did not make any entry in the daily diary about the incident. We concur with the finding recorded by the reviewing authority that the charge about his failure to intimate himself to the superior officers about the incident was proved.

11. Wednesbury' s Test : To judge the validity of any administrative order or statutory discretion, normally the Wednesburytest is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesburytest.

12. Having discussed the evidence etc. as above, we, however, find that the only charge of failure to intimate or being negligent in informing superior officers and making entry in the daily diary was proved. By assuming the injury of the size of 2 inches in place of small injury of 2 cms., the disciplinary authorities arrived at a result which is absurd and perverse. Further keeping in mind the doctrine of proportionality the punishment even of stoppage of three increments much less that of retiring him compulsorily from service could not at all be imposed. The fact, however, remains that he had immediately procured antiseptic cream after talk with the Doctor by spending Rs.100/- from his own pocket and applied the same immediately to the injury is inconsistent with the theory of his negligence towards the dog. The fact that he had asked Shri Wankhede to inform the superiors is again a factor, which cannot be lost sight of. It may be true that he failed in his duty to intimate himself to the superior officers, but then looking to his unblemished past service of 20 long years without any complaint against him, and he being a meritorious trainer, we are of the firm opinion that the punishment of either compulsory retirement or withholding of three increments for three years would be very harsh and disproportionate. It is true that the doctrine of proportionality, considering the nature of the disciplined Force, namely RPF may have to be applied with caution. But then we find that the only charge that is proved against the petitioner is that he himself failed to inform about the incident to the seniors and failed to take entry in the daily diary and nothing more. But he had asked Shri Wankhede to inform, who had informed the superiors.

13. The upshot of the above discussion is that the petition must succeed. We, however, find that it would not be proper for us to decide the question of quantum of punishment ourselves on the proof of second part of the charge but it will be appropriate to ask the authorities themselves to decide what punishment is to be imposed on the petitioner. As held earlier, we, however, find that the punishment of withholding of three increments for three years and the one of retiring him compulsorily from service cannot be imposed on him, looking to the part of charge of minor nature that is proved. The Department can however impose any other punishment provided in Rule 148.4 - petty punishments or 149.1 - other minor punishments of the Railway Protection Force Rules, 1987 only.

14. Now what about award of back-wages The discussion made above by us clearly show that the petitioner could have earned for his family had he not been deprived of actual employment. But then unjustifiably he has been deprived of the same due to passing of the impugned orders. He has a family with five members. He cannot be deprived of the back-wages for no serious fault of him. At the same time, he cannot be granted full back-wages because he and his family members must have earned during the period of his unemployment. In our opinion, award of 50% backwages would subserve the ends of justice. We, therefore, make the following order.

ORDER

(i) Writ Petition No.4857/2011 is partly allowed.

(ii) The impugned order Nos.282/2009, dated 12.12.2009 and 101/2011, dated 27.4.2011 are quashed and set aside.

(iii) The issue of imposition of punishment on the petitioner is relegated to the respondent - authority for taking fresh decision, in the light of the observations made in this judgment, which shall be done after issuing a show-cause-notice to the petitioner, within a period of four months from today.

(iv) The petitioner shall be reinstated in service within a period of four weeks from today with continuity of service and with back-wages to the extent of 50% only for the period of his unemployment i.e. till his reinstatement.

(v) In case of failure to reinstate him in service in his original post within a period of four weeks from today, the petitioner shall be deemed to be reinstated and shall be entitled to the salary regularly after the end of period of four weeks.

Rule is made absolute in the above terms.

No order as to costs.