Rajbir Singh vs Commissioner Of Police And Ors

S.N. Terdal, J

We have heard Mr. Ajesh Luthra, counsel for applicant and Ms.  Harvinder  Oberoi,  counsel  for  respondents,  perused  the pleadings and all documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(a) quash and set aside the impugned orders placed at Annexure A/1, Annexure A/2 and Annexure A/3 with all consequential benefits

(b) pass any other order/direction in favour of the applicant and against the respondents, which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case

(c) award costs of the proceedings and "

The relevant facts of the case are that on the allegation that the applicant alongwith other police official was found in a drunken condition while on duty, a summary of allegation was issued to three delinquent employees, including the applicant. The summary of allegation is extracted below:-

"It is alleged that HC Rajbir Singh No. 779/PCR (PIS No.28850465), Ct. Sidhrath No. 7876/PCR (PIS No. 29102819) and Ct. (Dvr) Jitender No. 9599/PCR (PIS No. 28093101) were deployed in the intermittent night of 17/18-04-2012 from 8.00 AM as I/C, Gunman and Driver respectively on MPV L-68 having its base Rohini Jail. An information that staff of MPV L-68 was drunk on duty was received by Inspr. Somender Pal Tyagi night checking officer Northern Range on telephone from CPCR. The checking officer Outer Zone PCR (T-54A) SI Ram Chander No. 3968-D was directed to get the whole staff of MPV L-68 medically examined from a Gove Hospital. Accordingly HC Rajbir Singh No. 779/PCR Ct. Sidharath No. 7876/PCR and Ct. Dvr. Jitender No.9599/PCR were taken to Dr. Baba Sahab Ambedkar Hospital, Rohini by SI Ram Chander (T-54-A) where they medically examined. On MLC no. A1486/12 of Ct.(Dvr.) Jitender Kumar No. 9599/PCR, Dr. did did not mention any thing about smell of alcohol in breath. On MLC No. A1487/12 pertaining to HC Rajbir Singh No. 779/PCR Dr. clearly recorded that "Smell of alcohol +tiv in patient breath and patent is not under influence of alcohol" Similarly, on MLC No. A1488/12 of Ct.Sidharth No. 78876/PCR Doctor has mentioned same as in MLC of HC Rajbir Singh No. 779/PCR. Three samples of blood of trio duly sealed were also provided by the Doctor of B.S.A. Hospital and the same have been deposited with the FSL, Rohini vide RC No. 3/21 with a request to provide expert opinion.

The above act on the part of HC Rajbir Singh No.779/PCR and Ct. Sidharth No. 7876/PCR amount to gross misconduct, indiscipline and unbecoming of police officer as found drunk while on duty and renders you liable to be dealt with departmentally under the provisions of Delhi Police (Punishment & Appeal) Rules, 1980 read with section 21 of Delhi Police At, 1978."

Along with the summary of allegation, list of witnesses and list of documents were served on the applicant. As the applicant did not admit the allegation, an Inquiry Officer was appointed. The Inquiry Officer following the principles of natural justice and also the rules governing the departmental enquiry conducted the joint departmental enquiry with respect to the applicant and one Siddharth and examined PW-1 to PW-5 and DW-1 and 2 and taken on record the defence statement of the applicant and discussed and analyzed the deposition of all the witnesses and also taken into account the FSL report which was secured after starting of enquiry and came to the conclusion that the charges leveled against the applicant were proved vide his inquiry report dated 02.11.2013. The disciplinary authority served a copy of the inquiry report on the applicant and the applicant submitted his representation with respect to the inquiry report. After considering the inquiry report and all the material which was brought on record in the departmental enquiry and after discussing the evidence and taken into account the representation given by the applicant and also hearing the applicant in orderly room on 17.12.2013, the disciplinary authority imposed a penalty of forfeiture of one year approved service temporarily for a period of one year in the time scale of pay to the applicant entailing proportionate reduction in his pay from Rs.14280/-PM to Rs.13,860/- PM vide order dated 27.12.2013. The applicant filed an appeal. The appellate authority also after discussing the entire material and carefully going through the DE file, statement of witnesses and defence statement and findings of the inquiry officer and the representation/appeal submitted by the applicant and hearing the applicant personally in orderly room on 15.07.2014 rejected the appeal vide order dated 17.07.2014.

The counsel for the applicant vehemently and strenuously submitted that the inquiry officer gave a finding of the charge having been proved only on the basis of FSL report, but however, the request of the applicant for calling for the author of the FSL report for cross examination was denied and he further submitted that the doctor who is the author of the MLC report and who was called as witness was not the person who examined the applicant physically for coming to the conclusion who was having the smell of alcoholic positive in patient breath and on that basis the counsel for the applicant submitted that the inquiry report is based of no evidence and at best it is a perverse report.

We have gone through the entire inquiry report. In the said joint inquiry based on the said FSL report the said co-delinquent Siddharth was held to be innocent and apart from the FSL report, the inquiry officer taken into account the deposition of PW1 to PW5 and DW1 to DW2 and hence we are of the view that the inquiry report cannot be held to be perverse or based on no evidence. The relevant portion of the Inquiry Report is extracted below:

"Analysis of Evidence:-

First of all, I would briefly discuss the statement of PWs recorded and facts emerging from them:-

PW-1: SI Ram Chander No. 3968/D (T-54):

He has proved the fact that delinquent along with his colleagues were subjected to medical examination from Baba Saheb Ambedkar Hospital by him when directed to do so by Inspr.S.P.Tyagi. He also collected their MLCs and blood samples from the hospital and deposited with D.O/O.Z vide DD No. 3 dated 18/4/2012 for further necessary action.

PW-2: Ct. Mahabir No. 2828/PCR (SIP Branch/ PCR)

He proved the posting of delinquents in Outer Zone/PCR at the relevant time. Photocopies of posting record exhibited as Ex.PW-a/A & Ex.PW-2/B respectively.

PW-3: HC Prem Pal No. 1218/PCR.

He proved the deployment of delinquents on MPV L-68 on the night of 17/18-4-2012. Photocopy of Call Book & Log Book of MPV L-68 and Duty Roster dated 17/18-4-2012 were exhibited Ex PW-3/A, ExPW-3/B and Ex-PW-3/C respectively.

PW-4: Inspr. S.P. Tyagi, Vigilance/PCR

He proved that on being directed by Sh. Rajesh Kumar, then DCP/PCR on telephone to get the staff of L-68 medically examined for consuming liquor on the night of 17/18-4-2012, he had directed SI Ram Chander (PW-1) for taking necessary action. He proved his earlier report which was exhibited as PW-4/A. DD No. 37 dated 19/4/2012 vide which delinquents were placed under suspension was also exhibited as Ex-PW-4/B.

PW-5: Ct. Sahensar Pal No. 2524/PCR.

He proved that he had deposited the blood samples of delinquents in FSL ROhini vide Road Certificate No. 3/21 dated 30/4/2012.

PW-6: Dr. Kuldeep Singh, CMO/Baba Sahab Ambedkar Hospital.

He proved that he had medically examined the delinquents on the night of 17/18-4-2012 when brought by SI Ram Chander. He had prepared the MLC of delinquent and had opined "smell Alcohol +ve in patient's breath" It was also opined that "Patient was not under influence of alcohol" by him. MLC of delinquents HC Rajbir was marked as Ex-PW-6/A.

The report of FSL report is of utmost importance in the context of this D.E. As regards the blood sample of delinquent HC Rajbir Singh, it has been opined, "On Chemical & GC-HS examination exhibit 'I' was found to contain ethyl alcohol 74.9mg/100ml.of blood." This quantity of alcohol is considered very high.

The FSL report also gives a negative report regarding presence of ethyl alcohol in he blo0d sample of co-delinquent Ct. Siddharth No. 7876/PCR. On the basis of this opinion, Ct. Siddharth was not proceeded against further and therefore, charge was not framed against him and DE proceedings were dropped against him.

Now, I would discuss the statement of DWs and defence contentions raised by the delinquent HC Rajbir Singh in his written statement. Ct.(Dvr.) Jitender Kumar No. 9599/PCR (DW-2) was deployed along with the delinquent on MPV L-68 on the night of 17/18-4-2012 and it is highly probable that he would not go against the interests of his colleague. He has denied categorically that HC Rajbir Singh had consumed liquor while on duty or even before being deployed on duty.

The other DW, namely, Zulfiqar is a public person. He is the owner of an Eicher Tempo and his statement contains the details of incident as told by his driver to him. Thereafter, he himself reached the spot and found that PCR staff had done good work and did not seem to be drunk.

The testimony of this DW does not inspire much confidence. He gave his statement in favour of the delinquent probably because PCR staff had saved his driver from the car-borne youth who were involved in a heated exchange at midnight due to collision of their vehicles.

It is also mentioned that in the Call-Book of L-68 (Ex.PW-3/A) it has been recorded by the delinquent that car-borne youth had made the PCR Call about them having been drunk at that time. It has also been recorded that these youth and their family members misbehaved and threatened the PCR staff.

These facts recorded in the Call Book by the delinquent himself give a strong inference in favour of the charge that delinquent was drunk at that time. It could not have been a false allegation. It was later confirmed from the MLC report and FSL report.

Finally, it may be seen whether the defence statement of the delinquent is of any help towards his defence. The following are the main defence pleas:-

(1) On the night of 17/18-04-2012 5 PCR calls were attended by L-68 and delinquent had properly communicated over wireless and also recorded the details of those calls in Call Book. There was no complaint from any public person regarding his behavior or conduct.

(2) As per MLC, he was not under influence of alcohol.

(3) Due to certain ailments, doctor had prescribed for him medicines which contained substantial quantity of alcohol. Before proceeding for duties on the night of 17/18-04-1212 he had taken the syrup and medicines at his residence. It was the smell of syrup and medicines and not of any liquor or drunk.

(4) That FSL report did not specify the root source of alcohol found in his blood sample.

(5) C.C.S conduct Rules, 1964 stipulates that "A Govt. servant shall not be under influence of any intoxicating drink or drugs during the course of his duty" Since it is proved that he was not under the influence of liquor, no dereliction of duty was committed by him.

In view of evidence on file, these defence pleas are discussed as under:-

(1) This plea does not hold much weight as it was not established at what time he consumed alcohol-whether before or after arriving for his shift duty on 17/18-04-2012. Besides, not every public person gives complaint against a policeman. As already mentioned earlier, delinquent has mentioned in the Call Book (Ex. PW-3/A) as to how the PCR staff was reported to be drunk while intervening in a quarrel between the car-borne youths and tempo driver.

(2) The delinquent had been subjected to medical examination much later at 1.30AM, as mentioned in MLC. By that time the influence of liquor might have waned considerably. But smell of alcohol was present in his breath at that time. Hence, he doctor opined accordingly.

(3) This plea appears to be more of well thought-out alibi than the truth. It establishes the fact that smell of alcohol was present in his breath. If it was true then DW-2 ct.Jitender must have made a mention of delinquent under such medication in his statement. They were colleagues and DW-2 has fully supported the delinquent in all respects but did not say anything about kind of medication delinquent was going through. Besides, the delinquent did not disclose about this medication to the doctor who had examined him at the hospital. MLC should have contained such details if he had revealed so. It is apparent that doctor's prescription has been obtained to dodge the FSL report which affirmed the presence of alcohol in his blood sample.

(4) It was not necessary for the FSL to comment on source root of alcohol found in blood sample because the delinquent did not took plea at the time of the medical examination that alcohol was the result of something else.

(5). This is a technicality which needs to be seen in right perspective. The plea has raised an interesting question. Whether one deserves to be let off if he consumes liquor but not under its influence while on duty. Now, as a consequence, it will also have to be seen whether one can escape from indictment under service rules just because he does not appear to be under the influence of alcohol even though his blood contains a considerably high level of alcohol because of liquor consumption.

In his context it is mentioned that there are different parameters for each individual for being adjudged whether one is under the influence of liquor or not. A habitual drinker would not seem under its influence even after consuming a high quantity whereas an occasional drinker would appear under its influence even if intake of liquor is in small quantity. Therefore, in the present D.E the delinquent cannot escape indictment just because doctor opined in the MLC that he was not under influence of liquor.

The time of medical examination of the delinquent is mentioned as 1.30AM in the MLC and it was very late from the time of 8PM when the shift duties of the delinquent had started. Though the exact time of consuming liquor by the delinquent could not be established but he was drunk while on duty and due to his medical examination taking place much later, the influence of liquor had subsided but smell of alcohol was very much present in his breath.

The delinquent cannot take advantage of the MLC report that he was not under influence of liquor. This advantage stands negative by the FSL report which shows presence of high level of ethyl alcohol in his blood sample.

CONCLUSION

In view of the above analysis of evidence, the charge against HC Rajbir Singh No. 779/PCR stands fully proved. As regards delinquent Ct. Siddharth No. 7876/PPCR, he already stands discharged as evidence did not come forth on DE file to frame charge against him."

The counsel for the applicant has not brought our notice violation of principles of natural justice or violation of any procedural rules governing the conduct of the departmental enquiry, except stating that the author of the FSL was not called for cross-examination.

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made.  Power of judicial review is meant to ensure that the individual receives  fair  treatment  and  not  to ensure that the conclusion which the authority reaches is necessarily correct in eye of  the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural  justice be complied with. Whether the findings or  conclusions  are  based  on  some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion.

But that finding must be based on some evidence.  Neither  the  technical  rules  of Evidence Act or of proof of fact or evidence as  defined  therein,  apply  to  disciplinary proceeding.  When  the  authority  accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts of the case narrated above and in view of the law laid down by Hon'ble Apex Court referred to above and in view of the fact that the counsel for the applicant has not brought to our notice violation of any procedural rules or principles of natural justice, the OA requires to be dismissed.

Accordingly, OA is dismissed. No order as to costs.