Atul Anand Awasthy v. State

Judgment

W.P. No.18098.03 Writ Petition No. 18098 of 2003 04/07/2011 Shri Atul Anand Awasthy, learned counsel for the petitioner. Shri Ashish Shroti, learned Govt. Advocate for the respondents/State. This petition is directed against the order dated 24-04-2000 and 16-11- 2000. By order dated 24- 04-2000 the petitioner, a constable in Police Department, having been found guilty of the charges levelled against him in a departmental enquiry and has been removed from service. Whereas by order dated 16-11-2000, the appeal preferred against the impugned order of penalty has been dismissed. Petitioner who was detailed for Court Moharrir duty on 01- 12-1998 was found derelecting in his duty. As well on 10-08-1999 was found attending District Police Office in drunken condition.

The said conduct led to issuance of charge sheet on 22-12-1999. Three charges were levelled against the petitioner, viz., (i) fnukad 1-12-98 dks dksbZ eksgfjZj M~;wVh ds fy;s O;ksgkjh U;k;ky; jokuk fd;s tkus ij drZO; ij mifLFkr u gksdj fcuk fdlh lwpuk ds LosPNkiwoZ d drZ O; ls vuiq fLFkr gksdj ,oa 250 fnol i'pkr mifLFkr gksdj vR;Ur vuq'kklughurk iw.kZ vkpj.k o drZO;ks a dh W.P. No.18098.03 vogsyuk djukA (ii) fnukad 10-8-99 dks yxHkx 14-30 cts ftyk iq fyl dk;kZy; es a 'kjkc dk lsou fd, mifLFkr gksdj vuq'kklu ghurk ,oa nqjkpj.k iznf"kr djukA (iii) ckj ckj nafMr fd;s tkus ds mijkar Hkh vius vkpj.k es a dksbZ lq/kkj u ykukA” Denial of charges by the petitioner led to initiation of a departmental enquiry wherein by enquiry report dated 28-12-1999 charges were found proved.

After following the procedure as to issuing the show cause notice along with enquiry report and calling defence, the disciplinary authority i.e. Superintendent of Police, Shahdol, after considering the material on record and the defence put forth by the petitioner, found the petitioner guilty of the charges, accordingly, inflicted the penalty of removal from service and treated the period of suspension from 11-08-1999 to 15-09-1999 as suspension. Appeal preferred against the said order was dismissed on 16-11-2000. Petitioner assails the removal on four grounds that (i) the petitioner is punished on perverse findings (ii) the petitioner was not under the influence of alcohol but had consumed the medicine (iii) that, as to third charge, the petitioner could not have been W.P.

No.18098.03 punished as he had already undergone the punishment for the past charges, and (iv) the punishment of removal was disproportionate. The aforesaid grounds when tested on the findings recorded by the enquiry officer, does not recuse the petitioner of the charges framed against him. In the enquiry the charges were proved on the basis of the evidence led by the prosecution. Petitioner had the opportunity to cross-examine the witnesses. The analysis of the evidence on record by the Disciplinary Authority does not suggest that the findings are perverse. As regard to charge of drunkenness, the doctor who examined the petitioner was examined as witness in the enquiry, he substantiated the charge of drunkenness.

The law is trite that a personnel belonging to the disciplined force is not expected to be on duty in drunken state and if found to be, the same tantamount to a conduct unbecoming of a member of disciplined force. In State of Punjab and others v. Ram Singh: AIR 1992 SC 2188, it is held :- " Thus it could be seen that the word 'misconduct' though not capable of precise definition, on W.P. No.18098.03 receives carelessness forbidden act, reflection its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; a transgression of established and definite rule of action or code of conduct but not mere error of judgment, or negligence in performance of the duty; the act complained of bears forbidden quality or character.

Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it to maintain strict requires discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.” Similarly, in Govt. of Tamil Nadu and others v. Vel Raj : AIR 1997 SC 1900, it has been observed :- ........ The police force has “7. to be a disciplined force and member of the police force has to behave in a disciplined W.P. No.18098.03 manner particularly when he is on duty. The respondent even though he was sent for official work and was on duty returned to the police station in 'mufti' and in after drunken condition consuming He had 'arrack'. returned to the police station to report to his superior officer as to what happened to the work which was entrusted to him.

Under these circumstances, his behavior has to be regarded as an act of gross misconduct. It is difficult to appreciate how the Tribunal could persuade itself to take a contrary view. In view of the facts and circumstances of this case it is not possible to say that the punishment which was imposed upon him was highly excessive.” Furthermore, regarding contention that for the past conduct for which the petitioner has already undergone the punishment he could not be punished twice, has been answered in Union of India and others v. Bishamber Das Dogra : (2009) 13 SCC 102 that :- “22. This Court in State of Assam v. Bimal Kumar Pandit considered the issue as to whether while imposing the punishment it is permissible into to consideration the past conduct of take W.P.

No.18098.03 an employee if it is not so mentioned in the second show- cause notice.