SECOND APPEAL 1120 of 2000 on 10 April 1991

Facts

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

Regular Second Appeal No.1120 of 2000Date of Decision: July 29, 2008

Parduman Singh

.....APPELLANT(S)

VERSUS

The State of Punjab & Another

.....RESPONDENT(S)

. . .

CORAM:HON'BLE MR. JUSTICE AJAI LAMBA

PRESENT: -Mr. Vijay Rana, Advocate, for the appellant.

Mr. H.S. Brar, Deputy Advocate General, Punjab.

. . .

AJAI LAMBA, J

This regular second appeal has been filed by the plaintiffagainst judgment of reversal. The plaintiff brought a suit for declaration to theeffect that order dated 10.04.1991 passed by Senior Superintendent of Police,Jalandhar whereunder the plaintiff was dismissed from service and order dated04.10.1991 passed by Deputy Inspector General of Police, Jalandhar Rangewhereby the appeal of the plaintiff against order dated 10.04.1991 was rejected,were illegal, void and liable to be declared as such.

In a nutshell, the factual matrix is that the appellant-plaintiffwas posted as Constable in Mahsanpur Police Post attached to Police StationNakodar, Jalandhar District on 25.02.1990. SHO Police Station Nakodar found the appellant-plaintiff under influence of liquor and, therefore, he was taken topolice Station Nakodar wherefrom he was taken for medical examination. Thedoctor in civil hospital found him drunk during medical examination. Depart-mental enquiry was conducted which found him guilty.

The S.S.P. Jalandhar, on considering the enquiry file, issuedshow cause notice to the plaintiff as to why he should not be dismissed fromservice. The notice was served on the plaintiff on 15.03.1991. Since no reason-able cause could be shown, the plaintiff was dismissed from service vide theimpugned order dated 10.04.1991. An appeal was carried against the orderwhich has been dismissed by the other impugned order by D.I.G. range.

Learned counsel appearing for the appellant has challengedthe findings recorded by the first appellate Court on Issue No.1. Issue No.1reads as under:- “1.Whether the order dt. 4.10.91 passed by Deputy In-spector General of Police, Jalandhar, range, JalandharCantt. whereby the appeal of the plaintiff is rejectedand in order dt. 10.4.91 passed by the SSP, Jalandharwhereby the plaintiff is dismissed from service is ille-gal and void? OPP”spector General of Police, Jalandhar, range, JalandharCantt. whereby the appeal of the plaintiff is rejectedand in order dt. 10.4.91 passed by the SSP, Jalandharwhereby the plaintiff is dismissed from service is ille-gal and void? OPP”

While the issue had been decided by the Trial Court in fa-vour of the plaintiff-appellant, the first appellate Court, on an appeal filed bythe defendants, has reversed the findings.

The substantial question of law raised by the learned coun- sel for the appellant is:- “Whether the judgment is passed on perverse reading ofevidence and in disregard to the evidence produced by theplaintiff on the relevant facts”.

The findings have been reversed by the first appellate Courtonly on the ground that the Civil Court is not to sit over the judgment of depart- mental authorities once regular enquiry has been conducted and the plaintiff hasbeen associated.

Contention of the learned counsel for the appellant-plaintiffis that the authorities have proceeded on the premise that the plaintiff was founddrunk in the police post. In medical examination, however, blood test or anyother conclusive test was not conducted so as to establish the charge.

The other argument of the learned counsel is that admittedlythe plaintiff was not on duty, however, in the police post, therefore, he couldnot have been proceeded against.

Learned counsel for the respondent-State has contendedthat proper procedure has been followed in departmental enquiry. The CivilCourt cannot look into the charges or evidence led before the Enquiry Officer.Principle of natural justice has been followed and, therefore, calls for no inter-ference with the impugned judgment.

Arguments

I have heard the learned counsel for the parties and havegone through the record. The reason for dismissal of the plaintiff is the allega-tion of he having been found in drunk condition. The plaintiff was taken toCivil Hospital, Nakodar wherein the doctor in his report has mentioned thatplaintiff had consumed liquor. This being the sole cause of proceeding againstthe plaintiff, it was required to be determined by the authorities as to whetherthe plaintiff indeed had consumed liquor or not.

The only material available with the authorities was the re-port of the doctor of the civil hospital, Nakodar who stated that the plaintiff hadconsumed liquor. This observation of the doctor has been recorded on the basisof the plaintiff giving out smell of alcohol and no other fact or circumstance.

Dr. Shingara Singh of Civil Hospital, in his statement be-fore the enquiry officer, has stated that though smell of alcohol was coming from the mouth of the plaintiff, but he was talking normally. In his opinion hehad consumed alcohol but was not intoxicated. As against the statement of thedoctor from Civil hospital, Dr. V.P. Kataria has appeared as DW-1 whose state-ment is to the effect that on 25.02.1990, the plaintiff had come with complaintof severe stomach ache. It was detected that there was swelling on account ofwhich bouts of severe stomach ache had occurred. Pain killer was prescribed.He was asked not to consume alcohol during the treatment. Medicine "B.G.Phos" was prescribed to be consumed half an hour before meal. After consum-ing this drug, the patient smells of alcohol. The medicine in fact does not con-tain alcohol. The patient was registered on 25.02.1990 at Sr. No. 728 in the reg-ister. Perusal of the Lower Court record shows that Ex.P-2 is a slip issued bythe doctor of Katarial Maternity and General Hospital, Jalandhar City bearingregistration no. OPD no. 728. B.G. Phos is one of the drugs prescribed on25.02.1990.There is no material on the record to indicate that the plain-tiff had consumed alcohol in presence of any other witness. There is no recov-ery of glass or bottle from the area. In these facts and circumstances, it is re-quired to be considered as to whether there was any material to show the mis-conduct alleged against the plaintiff.

The charge of grave misconduct made against the plaintiff was of consumption of alcohol. The only evidence coming forth is statement ofa doctor who has deposed that plaintiff was smelling of alcohol. There, how-ever, is no other fact or circumstance to support the plea. Since the plaintiff wastaken to the civil hospital, various tests could have been conducted to verify theconsumption of alcohol including a blood test. Admittedly, this was not done.The doctor from civil hospital has admitted that the plaintiff was talking in a normal manner and was not under influence of alcohol, that is to say that hewas not intoxicated. This creates suspicion in the case set up by the defendant.

Contrary to the case of the defendant-respondent, not onlythe doctor from Kataria hospital has come on record to depose in favour of theplaintiff-appellant that he had prescribed a drug on account of ailment reportedby the plaintiff, after consumption of which, the patient smells of alcohol, eventhe prescription slip has been exhibited on record. There is no material on therecord to dispute these facts.

In this case, therefore, there is no evidence to indicate thatthe plaintiff was intoxicated, was in inebriated state or had even consumed alco-hol. Since the only charge on account of which the impugned order has been is-sued was of consumption of alcohol in police post, there being no evidence toprove the fact and the allegation having been clearly disproved by the plaintiff-appellant, the impugned order is rendered without any basis, material or reasontenable in law.

The argument addressed by the learned counsel appearingfor the respondent-State that appropriate procedure had been followed and,therefore, Civil Court cannot look into the charges or evidence, in the facts andcircumstances of the case, does not hold good. Manifest injustice has been doneand the case being without any evidence has shocked the conscious of the Courtbeing without any evidence, the Court cannot shut its eyes to the action takenby the respondent-defendant viz. of dismissal of the plaintiff from service with-out any material or legally tenable ground. In somewhat similar circumstances,in2005 (1) Recent Services Judgments 132, Gulshan Kumar Vs. State ofHaryanaconsidered the legality of order of imposing major penalty. The rele-vant portion reads as under:-

"During the course of hearing of the instant case, learnedcounsel for the respondents was pointedly required to in-form this Court whether or not the petitioner was off dutyat the time when inspection was conducted at 8.30 P.M. on14.12.1984. In furtherance of the aforesaid desire of thisCourt, the respondents have produced original service rec-ord which only depicts that the petitioner was on duty onthe relevant date, namely on 14.12.1984. No material has,however, been produced before this Court to show whetheror not the petitioner was on duty or off duty at 8.30 P.M.Even the statements of witnesses produced by the respon-dents before the enquiry officer to establish the charge lev-elled against the petitioner, do not lead to any clear findingthat the petitioner was on duty at 8.30 P.M. on 14.12.1984.In view of the above, it is natural to accept the opinion ex-pressed by the Appellate Authority to the effect that the pe-titioner was not on duty at the time when inspection con-ducted by the District Inspector, Gurgaon, wherein hefound the petitioner smelling of alcohol. Accordingly, thecontroversy will have to be adjudicated upon by acceptingthat the petitioner was not on duty at the time when check-ing was conducted. In view of the fact that the charge-sheetdated 16.2.1985 does not even allege that the petitionerwas misconducting himself in any manner whatsoever, onaccount of his alleged intoxication, it will be natural toconclude that besides the allegation of having consumed al-cohol, there was no other allegation of misconduct againstthe petitioner. Thus viewed, the judgments rendered by thisCourt in Rattan Lal Vs. The State of Haryana, 1983 (2) SLR243 and Sukhdev Singh Vs. The State of Punjab & Others1983 (2) Services Law Reporter 645 squarely apply to thecontroversy in hand since the charges levelled against thepetitioner do not establish that he was in an aberrationstate during the duty hours, and further on account of thefact that no other allegation of misconduct, connected withthe state of intoxication, was levelled against the petitioner.

6. In so far as the second contention is concerned,namely the non-consideration of the statement by any of theauthorities, made by DW-2 Dr. Jai Bhagwan, who had beenproduced by the petitioner in support of his claim that thedrug prescribed for him by DW-2, although, had a smellakin to that of alcohol. It was, as a matter of fact, non-in-toxicating. The instant contention was pressed by the peti-tioner before the punishing authority, before the appellateauthority as well as before the revisional authority. How-ever, none of the aforesaid authorities dealt with the instantplea. The instant plea has again been raised at the hands ofthe petitioner in paragraph 11(v) of the writ petition. Theresponse in the written statement is, that by not relying onthe statement of Dr. Jai Bhagwan DW-2 (a governmentdoctor of the Civil Hospital, Gurgaon), the respondents hadcommitted no legal infirmity. In view of the factual positionnarrated above, it is apparent that the petitioner must suc-ceed on the second contention as well. The pointed plearaised by the petitioner was that he was not under the influ-ence of alcohol. His contention, clearly and categoricallythroughout, has been that he was prescribed certain drugs

by Dr. Jai Bhagwan, a government doctor posted at theCivil Hospital, Gurgaon. It was also the vehement conten-tion of the petitioner, that although, the prescribed drughad the smell of alcohol, it had no intoxicating effect. Thestatement of Dr. Jai Bhagwan to the aforesaid effect re-mained unrebutted and uncontested as he was not subjectedto cross-examination on the aforesaid issue. Since a gov-ernment doctor had appeared to support the claim of thepetitioner before the enquiry officer, it was not justified forthe authorities to brush aside the aforesaid claim withoutrecording a positive finding in respect thereto. As noticedhereinabove, since the statement of Dr. Jai Bhagwan DW-2had remained unrebutted, the same could have constitutedan effective reply to the charges levelled against him on ac-count of the non-rebuttal thereof, the petitioner should havebeen exonerated. Since the charge of being under the influ-ence of alcohol was based on only one consideration,namely, that the petitioner was smelling of alcohol, had thestatement of Dr. Jai Bhagwan DW-2 been considered, nosuch conclusion could have been drawn.

In view of the above, the instant writ petition is al-lowed. The punishment order dated 4.7.1985 is set aside.Accordingly, the appellate order as well as therevisions/order dated 26.11.1985 and 12.6.1986 respec-tively are also set aside. The petitioner shall be entitled toall consequential benefits flowing out of the setting aside ofthe orders referred to above. The monetary benefits due tothe petitioner shall be calculated within two months fromthe date of submission of a certified copy of this order bythe petitioner to the concerned quarters, and paid to himwithin a further period of one month."

Considering the totality of facts and circumstances viz. thatthe plaintiff was off duty; the plaintiff admittedly as per the witness of the de-fendant itself was not intoxicated; the plaintiff has produced evidence by way ofstatement of Dr. V.P. Kataria DW-1 and the prescription slip which justifiessmell of alcohol; there was no other material recovered (bottle of whiskey orglass etc.) to indicate that the plaintiff had consumed alcohol; blood of theplaintiff was not tested nor any other medical test was carried to ascertain con-sumption of liquor by him; no other witness has come to the witness box to saythat it was in his presence that the plaintiff had consumed alcohol, the actiontaken by the respondents viz. that dismissal from service is not sustainable inlaw or in facts.

Having examined the evidence/material in detail, I find thatthe relevant evidence has been perversely read and interpreted in so much as therelevant tests had not been conducted by Dr. Shingara Singh of Civil Hospitaland therefore, there was no material to indicate that the plaintiff was intoxi-cated. The evidence led by the plaintiff by way of statement of Dr. V.P. Katariaand the prescription slip and other related circumstances as noticed hereinabovehave been ignored and disregarded causing manifest injustice. There was infactno material available to indicate that the plaintiff who admittedly was off duty,was intoxicated.

In view of the above, the findings recorded on Issue No.1are reversed. The substantial question of law raised by the plaintiff stands sub-stantiated and while considering the issue raised, the appeal has to be allowed.

In my opinion, I am also supported by pronouncement ofthis Court in Gulshan Kumar's case (supra) to which detailed reference has beengiven herein above. The circumstances constrain me to interfere with the de-partmental proceedings and to look into the facts and circumstances which Ihave examined.

The appeal is allowed. The judgment and decree of the FirstAppellate Court are set aside and that of the Trial Court are maintained. Thesuit of the plaintiff-appellant is accordingly decreed.

No order as to costs.

(AJAI LAMBA)July 29, 2008 JUDGEShivani/avin