HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.416 of 2006 (S/B) State of Uttarakhand and others. …Petitioners Versus Mahipal Singh and another. …Respondents Sri P.C. Bisht, the learned Brief Holder for the petitioners. Sri Manoj Tewari, the learned Senior Advocate assisted by Sri Bhagwat Mehra, Advocate for the respondent no.1. Dated: December 15, 2009: Hon’ble B.C. Kandpal, J Hon’ble V.K. Bist, J. {Per Hon. V.K. Bist, J. (Oral)} By means of this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the judgment and order dated 6th October, 2006 passed by the Uttarakhand Public Service Tribunal whereby dismissal order of respondent no.1 dated 23.04.1999 and the appellate order dated 06.08.1999 have been quashed. 2. Brief facts which emerge out from the record, interalia, are that the respondent no.1 was appointed as Constable on 1st January, 1987 in the Police Department and was posted at the Police Line, Pauri. On 10.02.1998, ‘Sainik Sammelan’ was organized in the Police Line, Pauri. Respondent no.1 appeared in the meeting, presided over by the Superintendent of Police, in an intoxicated condition and behaved in an indisciplined manner. He was sent for medical examination and was found having consumed alcohol but was not found under the influence of intoxication. Consequently, the respondent no.1 was suspended on 19.02.1998. The preliminary inquiry was entrusted to Deputy Superintendent of Police, Pauri who, 2 after conducting the inquiry, submitted his report to the Superintendent of the Police. On the basis of preliminary inquiry, a departmental proceeding under U.P. Subordinate Police Officers (Punishment & Appeal) Rules, 1991 (hereinafter referred to as the ‘Rules’) was initiated against respondent no.1. In this regard a charge sheet was issued to him on 06.06.1998. After receipt of the charge sheet respondent no.1 filed his reply denying the allegation of consumption of alcohol with the explanation that due to tooth ache he was holding spirit soaked cotton beneath his teeth. He also stated that he neither misbehaved nor showed any disrespect or indiscipline. Regarding the medical report furnished by the doctor, he replied that doctor gave his report under the influence of the Police Department and after the medical examination, his thumb impression was taken forcibly. After the receipt of the reply to the charge sheet, the Deputy Superintendent of Police submitted his report on 05.04.1999 in which he found respondent no.1 guilty of misconduct and indiscipline. Thereafter, a show cause notice was issued to respondent no.1 alongwith the report of Enquiry Officer. In response to the show cause notice, respondent no.1 filed his reply denying the charges levelled against him. On 23.04.1999 S.P., Pauri passed final order dismissing respondent no.1 from the service. Against his dismissal order, respondent no.1 filed an appeal before the Deputy Inspector General of Police, Garhwal Region who rejected the same vide his order dated 06.08.1999. Feeling aggrieved by the orders dated 23.04.1999 and 06.08.1999 a claim petition was filed by respondent no.1 before the Public Services Tribunal, U.P. which was transferred to the State Public Services Tribunal, Uttarakhand. The learned Tribunal vide its 3 judgment and order dated 6th October, 2006 partly allowed the claim petition and quashed the punishment order dated 23.04.1999 as well as the appellate order dated 06.08.1999. The learned Tribunal directed that respondent no.1 shall be reinstated in service within two months from the date copy of the order which will be served on the petitioners. The appointing authority was also directed to pass fresh speaking order on the basis of enquiry report dated 05.04.1999 within three months from the date respondent no.1 joins his duties. Learned Tribunal further directed that respondent no.1 shall be entitled for back wages from 23.04.1999, subject to final order in the enquiry, to be payable after final decision of disciplinary authority. 3. The petitioners have filed present writ petition on the ground that the procedure prescribed under Rule 14 of the ‘Rules’ has been complied with and full and adequate opportunity was provided to respondent no.1 for his defence and for adducing evidence but he denied to produce any evidence, hence the learned Tribunal erred in setting-aside the punishment orders. The order of Tribunal has also been challenged on the ground that Regulation 373 of the Police Regulation puts specific bar for consuming alcohol and in the case of respondent no.1, he was rightly punished for consuming alcohol. 4. Respondent no.1 came up with the case that the departmental proceedings were not held as per the Rules and he was not given proper opportunity to defend his case. It is further stated that the petitioner no.3 took undue interest in the matter and the Circle Officer, Kotdwar, who was appointed as Enquiry Officer, was 4 under direct control of Superintendent of Police, Pauri. Respondent no.1 denied the allegation of consumption of liquor, misconduct or indisciplined behavior levelled against him. In Sainik Sammelan he simply requested the S.P., Pauri in a very polite and humble manner regarding grant of selection grade to him. Respondent no.1 also came up with the plea that the Emergency Medical Officer who had conducted medical examination was under pressure to give adverse report, as the medico-legal certificate itself illustrate that there was no indication of intoxication except smell. Moreover, respondent no.1 was not put to any pathological examination e.g. urine test, blood test etc.. Thus, the opinion of the Medical Officer has no relevance. It is further alleged that the punishment order has been passed in a mechanical manner without considering the reply submitted by respondent no.1 and the appeal presented before the Appellate Authority was also rejected hastily without taking into consideration the grounds raised by the appellant-delinquent. 5. We have heard Shri P.C. Bisht, the learned Brief Holder for the petitioners/State and Shri Manoj Tewari, the learned Senior Advocate assisted by Sri Bhagwat Mehra, for respondent no.1 and perused the entire material available on record. 6. Shri P.C. Bisht, the learned Brief Holder for the petitioners/State argued that the Medical Officer while conducting medical examination of respondent no.1 has specifically reported that the patient has consumed liquor. He submitted that the incident of misbehavior in Police Sammelan took place on 10.02.1998 at about 2:00 p.m. whereas the medical examination took place after 5 more than one hour at 3:30 same day, hence in any case after the lapse of a period of more than one hour the effect of alcohol was reduced and due to this reason, in the medical report respondent no.1 was not found under the influence of alcohol. But he was found having consumed alcohol. He argued that being the member of a disciplined force the conduct of respondent no.1 was in violation of U.P. Government Servant Service Rules, 1861 and the penalty imposed upon respondent no.1 dismissing him from service after holding proper departmental inquiry was just, reasonable and legal. He also argued that respondent no.1 was provided adequate opportunity for his defence and adducing evidence under the procedure laid down under the Rules, but respondent no.1 denied producing any evidence against the charges levelled against him. He further argued that the learned Tribunal should not have interfered because departmental proceedings were conducted after adopting due procedure stipulated under the Rules. 7. On the other hand Shri Manoj Tewari, the learned Senior Counsel for respondent no.1 argued that the Superintendent of Police, who is the punishing authority, took undue interest in the matter due to which it became an uphill task for respondent no.1 to get justice. He vehemently argued that the incident of misbehavior in Police Sammelan was false and motivated. He submitted that the Medical Officer has given a categorical finding that respondent no.1 was not found under impression of intoxication, therefore the entire story of the petitioners is concocted. He argued that the medical report cannot be given any significance as the Medical Officer who gave this report had not subjected respondent no.1 to any 6 pathological examination e.g. urine test, blood test etc. in coming to the conclusion that the person has consumed alcohol. Learned Senior Counsel for respondent no.1 further submitted that after receipt of the charge sheet respondent no.1 filed his reply denying the allegation of consumption of alcohol with the explanation that due to tooth ache he was advised to put spirit cotton which, smelled. He argued that since Enquiry Officer was under direct control of S.P., Pauri, the enquiry cannot be said a fair enquiry. He further argued that the punishment order was passed in a mechanical manner without considering the reply submitted by respondent no.1 and the appeal of respondent no.1 was also rejected without taking into consideration the grounds raised by him. Shri Manoj Tewari, the learned Senior Counsel also argued that the learned Tribunal after assessing the entire material available on record has passed a reasoned order which does not warrant any interference and the writ petition is liable to be dismissed. 8. We have gone through the judgment of the learned Tribunal. The learned Tribunal found no illegality in the enquiry report as all the witnesses were examined in the presence of respondent no.1 and an opportunity for cross-examination was also afforded to him. Respondent no.1 was also allowed to produce witnesses. But the punishment order as well as appellate order were set- aside on three counts, first, the punishment is disproportionate to the alleged act of indiscipline, secondly, while awarding punishment, the petitioners were also guided by previous conduct of respondent no.1 and thirdly, the S.P., Pauri, who himself was present at the time of incident, acted in a prejudiced manner. We 7 agree with the findings recorded by the learned Tribunal that the petitioners were prejudiced against respondent no.1 as they were guided by the previous conduct of respondent no.1, which was not included in the charge- sheet. The learned Tribunal has rightly quashed the punishment order dated 23.04.1999 as well as the appellate order dated 06.08.1999. We do not find any illegality, infirmity or perversity in the judgment and order dated 6th October, 2006 passed by the learned Tribunal. Therefore, the judgment and order dated 6th October, 2006 passed by the learned Tribunal is hereby affirmed. 9. Consequently, the writ petition is dismissed. No order as to costs. (V.K.Bist, J.) (B.C. Kandpal, J.) 15.12.2009 NCM: