High Court of Chhattisgarh
Case Details
1 2025:CGHC:31665 AFR HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.07.14 11:18:56 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No. 6754 of 2016 Vinod Singh Died Through Lrs :- 1. Smt. Maya Baghel W/o Late Shri Vinod Singh Baghel, Aged about 30 years. 2. Ku. Versha D/o Late shri Vinod Singh Baghel, Aged about 15 years. 3. Abhishek S/o Late Vinod Singh Baghel, Aged about 12 years. 4. Vikash S/o Late Shri Vinod Singh Baghel, Aged about 10 years. No. 2 to 4 are minor through Natural Guardian Mother Smt. Maya Baghel. All are R/o Subham Vihar, Raypura, Thana Devendra Nagar, Civil and Revenue District Raipur, Chhattisgarh. ... Petitioners versus 1. The State Of Chhattisgarh Through The Secretary Home Department Mahanadi Bhawan Mantralaya Naya Raipur, District Raipur Chhattisgarh. 2 2. Director General Of Police, Chhattisgarh Arms Force-1, Police Head Quarter Raipur, Distt. Raipur Chhattisgarh Pin 4949001. 3. Inspector General Of Police, Raipur, District Raipur Chhattisgarh. 4. Superintendent Of Police Senani, 3rd Battalion Chhattisgarh Arms Force Ambleshwar Durg, Distt. Durg Chhattisgarh. 5. Company Commander, 3rd Battalion Chhattisgarh Arms Force Ambleshwar Durg Inquirty Officer, Distt. Durg Chhattisgarh. ... Respondents For Petitioners
Legal Reasoning
“17. Charge 3 was that the respondent had become habitual in committing indiscipline and disorderliness. A reference was made to two major penalties of deduction of pay and one minor punishment of reduction of seven days’ salary earlier. The disciplinary authority found that the respondent did not improve in spite of being punished earlier. The High Court agreed with the contention of the respondent and held that a fresh enquiry cannot be initiated into a misconduct for which a delinquent had already suffered a penalty. The High Court found that any penalty imposed under Charge 3 would amount to double jeopardy. We disagree with the finding of the High Court as we are of the view that the respondent did not improve in spite of being punished earlier and had become habitual in the indiscipline and disorderliness, disciplinary authority rightly found Charge 3 as proved. The desirability of continuance of the respondent was considered on the basis of his past conduct which does not amount to double jeopardy. In any event, past conduct of a delinquent employee can be taken into consideration while imposing penalty. We are supported in this view by a judgment of this Court in Union of India v. Bishamber Das Dogra5, held as follows: (SCC p. 111, para 30) “30. …. But in case of misconduct of grave nature or indiscipline, even in the absence of statutory rules, the authority may take into consideration past conduct/service record of the employee for adding the weight to the decision of imposing the punishment if the facts of the case so require.”” indisputable the 5 (2009) 13 SCC 102 10 14. Similarly, in the matter of Mohd. Yunus Khan v. State of Uttar Pradesh and Others6, it has been held by their Lordships of the Supreme Court that the Disciplinary Authority can take into consideration service record of the delinquent employee for adding weight to the decision of imposing the punishment if the fact of the case so required and observed in paragraphs 34 and 35 as under :- “34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show- cause notice, before imposing the punishment. 35. This Court in Union of India v. Bishamber Das Dogra (supra) considered the earlier judgments of this Court in State of Assam v. Bimal Kumar Pandit7, India Marine Service (P) Ltd. v. Workmen8, State of Mysore v. K. Manche Gowda9, Colour-Chem Ltd. v. A.L. Alaspurkar10, DG, RPF v. Sai Babu11, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate12 and Govt. of A.P. v. Mohd. Taher Ali13 and came to the conclusion that it is desirable that the conduct could be taken into consideration while imposing the punishment. However, in case of misconduct of a grave nature, even in the absence of statutory 6 (2010) 10 SCC 539 7 AIR 1963 SC 1612 8 AIR 1963 SC 528 9 AIR 1964 SC 506 10 (1998) 3 SCC 192 11 (2003) 4 SCC 331 12 (2005) 2 SCC 489 13 (2007) 8 SCC 656 11 rules, the authority may take into consideration the indisputable past conduct/service record of the delinquent for “adding the weight to the decision of imposing the punishment if the fact of the case so required.”” 15. In view of the aforesaid legal analysis, the Disciplinary Authority is right in taking consideration of previous misconduct of the petitioner while considering the question of petitioner’s dismissal and thereby, holding that second charge is found established against him. However, since the first charge is not found proved whereas the second charge is found proved, the impugned orders dated 06/02/2016 (Annexure P-1), 23/05/2015 (Annexure P-2) and 24/01/2015 (Annexure P-3) are hereby set aside and matter is remitted to the Disciplinary Authority i.e. respondent No. 4 for considering the feasibility of awarding the punishment and/or the question of quantum of punishment other than dismissal from service as awarded to the petitioner, afresh, which will be decided by passing a reasoned and speaking order strictly in accordance with law within 2 months from the date of receipt of a copy of this order. Depending upon the order passed, the LRs of the petitioner will be entitled to make application to the competent authority for disbursal of retiral dues/service benefits of the original government servant/petitioner. 12 16. Accordingly, this writ petition is allowed to the extent indicated herein-above. No cost(s). Sd/- (Sanjay K. Agrawal) Judge lHarneet
Arguments
: Mr. P.K. Goshwami and Mr. Jitendra Gupta, Advocates For Respondents/State : Mr. Sharad Mishra, P.L. SB- Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 09.07 .2025 1. By way of this writ petition under Article 226 of the Constitution of India, petitioner has sought to challenge the order dated 06/02/2016 (Annexure P-1) passed by respondent No. 2 in the appeal preferred by him whereby the order dated 23/05/2015 (Annexure P-2) passed by respondent No. 3 has been affirmed thereby, re-affirming the order dated 24/01/2015 (Annexure P-3) passed by respondent No. 4 terminating the original petitioner from service. 3 2. Petitioner was working as a Constable (GD) and on 23/08/2014 (Annexure P/4), he was charge-sheeted and the following two charges were levelled against him :- आरोप राቔኌ(cid:7) गणना में शराब सेवन कर उपቝኌ(cid:21)(cid:22)त होना | अपशब्दों का ्ቚयोग शराबा कर अशोभनीय आचरण ्ቚदቦኌशत ቔኌनयम - के सिसቔኌवल सेवा (आचरण) ቔኌनयम, 1965 अभ्ቖता के सा(cid:22) शोर - 1 - करना | करना | म.्ቚ. / छ.ग. 23 (ख) एवं 3(3) के ्ቚतितकू ल कृ त्या करना | छोटी सजा, बड़ी सजा एवं 01 2 - पूव. में भी शराब सेवन ቔኌकए जाने पर 01 बड़ी सजा, क्ቈኚᮔय. से/ ्ቐूटी के ्ቚतित घोर लापरवाही बरतने पर 01 छोटी सजाओं से दቝኌ89त अवकाश से अनुपቝኌ(cid:21)(cid:22)त रहने के कसूर में 06 ቔኌकया जाकर सेवा का अंतितम अवसर ቔኌदए जाने के बावजूद भी आचरण में सुधर न लाया जाकर सेवा के अनुपयु्ሹ पाया जाना| 3. The aforesaid charges were found proved against the petitioner by the Inquiry Officer i.e. respondent No. 5 which was further accepted by the respondent No. 4 i.e. Disciplinary Authority and finding that on 06/08/2014, while he was on duty, he was in a state of intoxication and exhibited indiscipline which is a major misconduct and which is unbecoming of a Police Officer and moreover, he has already been inflicted with 7 minor punishments and 1 major punishment, despite that he has not improved which shows that he is a habitual offender, proceeded to pass his order of termination on 24/01/2015 (Annexure P-3). 4. Mr. P.K. Goshwami, learned counsel for the petitioner, would submit that petitioner was charged with being in an intoxicated condition during duty hours and exhibiting 4 indecent behaviour which is unbecoming of a Police Officer, however, no medical test was conducted to find out whether he was in a state of intoxication and only on the basis of oral examination, it has been held that he was inebriated, which is totally unsustainable and bad in law. Further, the fact that 7 minor punishments and 1 major punishment have already been inflicted upon the petitioner cannot be a subject matter for the Department to proceed against the petitioner, therefore, the instant writ petition be allowed and impugned order be set aside. 5. Mr. Sharad Mishra, learned State counsel, would support the impugned order and submit that petitioner was found in a state of intoxication and he also exhibited indecent conduct which is unbecoming of a Police Officer as per Rules 23(b) and 3(3) of the Chhattisgarh Civil Services (Conduct) Rules, 1965 and he is a habitual offender as 7 minor penalties and 1 major penalty have already been imposed upon him, therefore, he has rightly been terminated from service and the instant writ petition is liable to be dismissed. 6. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 5 7. The first charge levelled against the petitioner is that in the night of 06/08/2014, he came to duty in a state of intoxication and misbehaved with other officers therein and exhibited a conduct which is unbecoming of a Police Officer, however, it is clear from the record that in order to find out whether the petitioner was in a state of intoxication, no medical test was conducted and on the basis of oral evidence of witnesses, it was held that petitioner was intoxicated. 8. In this regard, the decision rendered by the Supreme Court in the matter of Bachubhai Hassanalli Karyani v. State of Maharashtra 1 may be noticed herein profitably, wherein their Lordships have categorically held that drunkenness cannot be said to be conclusively proved unless urine test or blood test is carried out and in absence of urine test or blood test, it cannot be definitely held that accused was in state of intoxication at the time of incident. 9. Similarly, in the matter of Munna Lal v. Union of India and Others 2 , the Supreme Court was dealing with charge against a Police Sub Inspector, who was allegedly found in drunken condition while on duty and it was held by their Lordships in paragraphs No. 4 & 5 as under: 1 (1971) 3 SCC 930 2 (2010) 15 SCC 399 6 “4. The learned counsel appearing for the respondent submitted that the appellant was found guilty of dereliction of duty previously also and there were other disciplinary proceedings against the conduct of the appellant. But in the instant case it was not proved that the appellant was drunk on the day when he was in duty. Evidence was not satisfactory to prove that he was found with any alcohol and he was also not taken to Safdarjung Hospital as suggested by the first doctor. 5. In the absence of positive evidence, we are of the view that the charge levelled against the appellant was not proved satisfactorily. In the absence of sufficient proof, the disciplinary authority should not have imposed such penalty. Therefore, the punishment imposed was illegal and the appellant is entitled to be reinstated in service and he is entitled to get 50% of the back wages for the period he was out of service. The respondents are directed to reinstate the appellant in service forthwith. The appellant's service during this period would be treated for other service benefits such as seniority, increment and pension.” (Emphasis supplied) 10.Also the Division Bench of Calcutta High Court in the matter of Narendra Dutta Rai Vs. Union of India 3 has relied upon the principles of law laid down by their Lordships of the Supreme Court in the matters of Bachubhai Hassanalli Karyani (supra) and Munna Lal (supra) and held in paras 49 & 51 as under: 3 2018 SCC OnLine Cal 8613 7 “49.Before imposing major penalty upon an employee the respondent authorities ought to have conducted the necessary medical test(s) to come to a definite finding that the employee was under the influence of resulted in his alcohol which misconduct. The respondents ought to have satisfied themselves that the employee was in such a mental and physical condition so as to deprive him of clearness of intellect and control of himself which he would otherwise possess and the said behavior was under influence of alcohol. In the absence of any corroborating piece of evidence an employee ought not to be removed from service. 51. It is the well settled principle of law that the onus to prove the offence lies on the prosecution. In the instant case, it was the obligation of the respondent authorities to prove the case against the appellant and not the other way round. In the absence of any cogent evidence against the appellant the case against him could not have been proved by the respondents. Moreover the definite statement made in Charge II that the attending 'doctor of the hospital confirmed the intoxicated condition' of the appellant is the absolutely predetermined and biased mind set of the disciplinary authority who conducted the inquiry against the appellant.” This shows false. 11. Coming to the facts of the present case, it is quite vivid (Emphasis supplied) that the inebriation of the petitioner is sought to be proved on the basis of the panchnama which is based on the oral testimony of the witness namely Govind Singh, 8 but the Disciplinary Authority did not ask the petitioner to undergo medical test to establish the fact of drunkenness. As such, in light of the decisions rendered by the Supreme Court in the matters of Bachubhai Hassanalli Karyani (supra) and Munna Lal (supra) followed by the Calcutta High Court in the matter of Narendra Dutta Rai (supra), the procedure adopted by the Disciplinary Authority for proving the fact of inebriation while on duty would not be the correct manner of proving the charge against the petitioner herein. In absence of any medical test undergone by the petitioner, the Disciplinary Authority has erred in finding the first charge proved against him. 12. The second charge levelled against the petitioner is that he has been inflicted with 7 minor punishments and 1 major punishment and yet he did not improve his behaviour, however, it is the case of the petitioner that this cannot be taken as a subject matter by the Disciplinary Authority to proceed against him in order to terminate him from service. 13. The decision rendered by the Supreme Court in the matter of Central Industrial Security Force and Others v. Abrar Ali4 may be noticed herein profitably wherein it has been held that in any event, past conduct 4 (2017) 4 SCC 507 9 of a delinquent employee can be taken into consideration while imposing penalty. Paragraph 17 of the judgment states as under :-