This petition under Article 226 of Constitution of India has been filed assailing the orders dated 21/01/2021, 15/07/2021 and 20/07/2022 passed by respondents No.4, 3 & 2 respectively, whereby petitioner has been visited with the major penalty of removal from service pursuant to the departmental enquiry.

2. It is the case of the petitioner that he was recruited as Constable (General Duty) and was posted in the 9th Battalion, SAF. He has served the Department with full sense of honesty, sincerity and dedication. During 11 years of service, petitioner has earned confidential reports as very good and good by the different reporting officers. He was awarded 28 awards for different acts and 4 minor punishments including Censure. He is a keen sports person and has been awarded certificates for participation in various sports activities.

3. On 06/05/2020, while he was posted in 9th Battalion SAF, Rewa, Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 2 W.P. No.20424/2022 charge-sheet was issued by respondent No.4 containing two charges. Charge No.1 was that on 06/01/2020, petitioner was found in the state of intoxication during the duty hours thereby exhibiting grave indiscipline and the another charge was that the above act of intoxication of petitioner is a serious misconduct under the Madhya Pradesh Civil Services (Conduct) Rules, 1965. A departmental enquiry was instituted against the petitioner. Witnesses were examined. During examination of witnesses, petitioner was not afforded proper opportunity of cross- examining the witnesses. The witnesses examined by the department have supported the charges levied against the petitioner but their statements were vague and unclear. Medical examination of the petitioner was got conducted and it was observed that petitioner has consumed liquor but he was not under intoxication. The enquiry officer held the charges proved against the petitioner and enquiry report was supplied to the petitioner along with letter dated 05/01/2021 and petitioner was asked to submit his defence. Petitioner filed his response to the enquiry report on 18/01/2021 stating therein that he was suffering from cough and cold, therefore he has taken a cough syrup which smell like alcohol. Respondent No.4 imposed the major penalty of removal from service on the petitioner vide order dated 21/01/2021. It is submitted that he order has been passed in a cryptic manner without considering the nature of misconduct committed by the petitioner.

4. Petitioner thereafter preferred a departmental appeal before respondent No.3 which was rejected vide order dated 15/07/2021 without considering the grounds raised by petitioner. Thereafter, he approached before the respondent No.2 by filing a petition/ representation but the same was also rejected without considering the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 3 W.P. No.20424/2022 facts and circumstances of the case.

5. It is argued that the petitioner has unblemished service report, therefore the punishment imposed by the Authorities is harsh. There was no convincing evidence available on record which could establish that petitioner was in intoxicated state coupled with the fact that no proper opportunity of cross-examining the witnesses was provided to the petitioner. It is submitted that the Authorities should have considered the case of the petitioner for imposition of some less penalty. The punishment of dismissal from service is too harsh looking to the charges levelled against the petitioner coupled with the fact that no untoward incident is reported by the Authorities from the petitioner even if the petitioner is found to be in an intoxicated condition as per the respondents. As there is no any untoward incident pointed out owing to the consumption of liquor by the petitioner while on duty, the Authorities should have considered for imposition of some less punishment to him.

6. On notice being issued, a reply has been filed by the Authorities. They have supported the impugned orders pointing out the fact that the impugned orders have been passed after conducting a detailed enquiry into the matter. Admittedly, petitioner was found to have consumed liquor while he was on duty. He duly participated in the departmental enquiry and ample opportunities were granted to the petitioner to lead his defence and after conclusion of departmental enquiry, enquiry officer found the charges levelled against the petitioner to be proved. The said enquiry report was served to the petitioner along with notice to which the petitioner submitted his response and thereafter being dissatisfied with the response submitted by the petitioner, the penalty of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 4 W.P. No.20424/2022 removal from service was inflicted on the petitioner. It is further contended that petitioner is working on the post of Constable (General Duty) in a disciplined Police force. Such acts of consuming liquor while on duty are intolerable in such disciplined forces. The criteria for consideration of such acts committed by the employees are to be taken note of and some stringent orders are required to be passed so that no other dares to repeat the same. It is argued that after passing of the dismissal order, the Appeal as well as second representation preferred by the petitioner to respondent No.2 have been rejected and the order of punishment has been upheld. There are concurrent findings of three Authorities against the petitioner which cannot be interfered in a petition under Article 226 of Constitution of India while exercising powers, this Court cannot sit as an Appellate Authority and review the entire evidence available on record. It is only required to see whether the procedure adopted by the Authorities was just and proper. Reliance has been placed on the judgment passed by Hon'ble Supreme Court in the case of Union of India and others Vs. P. Gunasekaran reported in (2015) 2 SCC 610 and prayed for dismissal of Writ Petition.

7. Heard learned counsel for the parties and perused the record.

8. From the perusal of record, it is an admitted position that petitioner while in service was served with a charge-sheet levying following charges:-

9. A detailed departmental enquiry was conducted by the Authorities. Petitioner duly participated in the departmental enquiry.

NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 5 W.P. No.20424/2022 Thereafter, enquiry report was prepared and the enquiry officer found both the charges proved against the petitioner and gave observations vide report dated 31/12/2020 as under:-

10. The said report was forwarded to the petitioner along with a covering memo dated 05/01/2021, to which the petitioner duly responded vide letter dated 18/01/2021 (Annexure-P/6). Thereafter, the disciplinary authority has passed the impugned order imposing penalty of removal from service on 21/01/2021. The appeal as well as subsequent petition preferred before Deputy Inspector General of Police, SAF, Bhopal and Director General of Police, Bhopal have been rejected vide orders dated 15/07/2021 and 20/07/2022.

11. The law with respect to interference in cases of penalty after departmental enquiry came to be considered by Hon'ble Supreme Court in the case of P. Gunasekaran (supra), wherein it has been held as under:-

"12. 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 Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 6 W.P. No.20424/2022 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:

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 7 W.P. No.20424/2022

12. From the perusal of aforesaid observations made by Hon'ble Supreme Court, it is apparently clear that this Court under Article 226 of Constitution of India cannot sit as an appellate Authority and cannot re- examine the evidence collected by the enquiry officer during department enquiry, rather it only required to see whether the procedure adopted by the enquiry officer is correct or not.

13. There is nothing on record brought by the petitioner which could demonstrate that the procedure adopted by the enquiry officer was incorrect and therefore, there is no scope for interference as far as enquiry is concerned.

14. However, if the charges levelled against the petitioner are seen, then it is clear that there were two charges. First that he was found in an intoxicated condition on 06/01/2020 while he was on duty which amounts to grave indiscipline and second that he has committed serious misconduct in terms of Rule 23¼d½ ,oa ¼[k½ of Madhya Pradesh Civil Services (Conduct) Rules, 1965. There is no other charge levelled against the petitioner. Petitioner was subjected to medical examination and the medical report shows that petitioner has consumed liquor while he was on duty, however report does not reflect that petitioner was in an intoxicated condition. There is nothing on record to show that under intoxicated condition, petitioner has misbehaved with any of the superior officer or has committed an act which derogates the reputation of the Police Department in the Society.

15. Petitioner has been awarded on 28 occasions during his service tenure and he has been inflicted with 4 minor penalties as reflected from the pleadings. There is no rebuttal to the aforesaid by the respondents.

16. Under these circumstances, the punishment of removal from Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 8 W.P. No.20424/2022 service appears to be too harsh and disproportionate to the charges levelled against the petitioner.

17. It may be a case that the petitioner has committed an act of indiscipline in the Department but the fact remains that no act on the part of the petitioner is reported which has caused harm to anyone. Under these circumstances, the Authorities should have a thought of inflicting some lesser punishment than the dismissal from service. Even the Appellate Authority as well as the petition preferred before the Director General of Police has not given a thought to the aforesaid and simply affirmed the order passed by the Disciplinary Authority without even considering the grounds raised in the Appeal.

18. The Hon'ble Supreme Court in similar circumstances had an occasion to consider the aspect of misconduct in the case of Union of India Vs. J. Ahmed reported in (1979) 2 SCC 286 and has held as under:-

19 Guj LR 108, 120]). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."

(Emphasis Supplied)

19. If the aforesaid observation of the Hon'ble Supreme Court is taken note of and the charges levelled against the petitioner are seen, then the Authorities have nowhere considered the impact of alleged negligence on the part of the petitioner. The respondents are required to establish ill motive on the part of the petitioner. In absence of aforesaid being proved by the Authorities, the punishment of removal from service on the charges levelled against the petitioner appears to be too harsh and on higher side.

20. The Hon'ble Supreme Court in the cases of Inspector Prem Chand Vs. Govt. of NCT of Delhi reported in ( 2007) 4 SCC 566, LIC Vs. R. Suresh reported in (2008) 11 SCC 319, Punjab State Civil Supplies Corpn. Ltd. Vs. Sikandar Singh reported in ( 2006) 3 SCC 736, Ravi Yashwant Bhoir Vs. Collector reported in (2012) 4 SCC 407 and Mehar Singh Saini, In ref. reported in (2010) 13 SCC 586 has considered the proposition of law laid down in the case of J. Ahmed Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 10 W.P. No.20424/2022 (supra).

21. The Hon'ble Supreme Court in the case of U.P.S.R.T.C. Vs. Mahesh Kumar Mishra reported in (2000) 3 SCC 450 has held as under:-

(Emphasis Supplied)

22. The aforesaid principle was again reiterated by Hon'ble Supreme Court in the case of M.P. Electricity Board Vs. Jagdish Chandra Sharma reported in (2005) 3 SCC 401, wherein the Hon'ble Supreme Court has held as under:-

NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 13 W.P. No.20424/2022 It may also be noticed that in Orissa Cement Ltd. v. Adikanda Sahu [(1960) 1 LLJ 518 (SC)] and in New Shorrock Mills v. Maheshbhai T. Rao [(1996) 6 SCC 590 : 1996 SCC (L&S) 1484] this Court held that use of abusive language against a superior, justified punishment of dismissal. This Court stated "punishment of dismissal for using abusive language cannot be held to be disproportionate". If that be the position regarding verbal assault, we think that the position regarding dismissal for physical assault, must be found all the more justifiable. Recently, in Muriadih Colliery BCC Ltd. v. Bihar Colliery Kamgar Union [(2005) 3 SCC 331 : JT (2005) 2 SC 444] this Court after referring to and quoting the relevant passages from Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh [(2004) 8 SCC 200 : 2004 SCC (L&S) 1067 : ( 2004) 7 Scale 608] and Tournamulla Estate v. Workmen [(1973) 2 SCC 502 : 1973 SCC (L&S) 510] held: (SCC p. 336, para 17) "The courts below by condoning an act of physical violence have undermined the discipline in the organisation, hence, in the above factual backdrop, it can never be said that the Industrial Tribunal could have exercised its authority under Section 11-A of the Act to interfere with the punishment of dismissal."

23. From the aforesaid settled legal proposition of law, it is apparently clear that if the decision of an employer is found to be within the legal parameters and after following due procedure of law, the jurisdiction would ordinarily not be invoked when the misconduct stand proved. However, the judgments of punishment orders can be interfered if it is found that punishment imposed is shockingly disproportionate to the alleged charge against the petitioner.

24. If the aforesaid principle is taken note of in the light of facts and circumstances of the present case, it is apparently clear that (i) the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 14 W.P. No.20424/2022 Authorities have failed to show the impact of alleged negligence on the part of the petitioner; (ii) they could not prove any ill motive on the part of the petitioner having consumed liquor while he was on duty; (iii) no other untoward act by the petitioner being in intoxicated condition is shown by the respondents; and (iv) the medical report has observed that petitioner has consumed liquor but was not in an intoxicated condition which goes to show that he was in his senses. Therefore, virtually no misconduct as alleged is found to be proved against the petitioner.

25. This Court is conscious about the fact that in departmental enquiry matters, the scope of interference is very limited. However, looking to the nature of charges levelled against the petitioner coupled with the fact that no impact could be pointed out by the Authorities regarding alleged negligence on the part of the petitioner, this Court arrives at a a conclusion that penalty of removal from service is shockingly disproportionate. Therefore this Court deems it appropriate to interfere with the punishment imposed on the petitioner affirming the inquiry report.

26. Accordingly, the impugned order of imposition of penalty of removal from service dated 21/01/2021 is hereby quashed. The subsequent orders passed in appeal by Appellate Authority as well as Director General of Police are also quashed.

27. The matter is remanded back to the disciplinary authority for reconsideration as far as imposition of punishment to the petitioner. The disciplinary authority is expected to impose any other punishment on the petitioner except removal from service considering the overall facts and circumstances of the case. Further the authorities are directed to reinstate the petitioner forthwith.

NEUTRAL CITATION NO. 2024:MPHC-JBP:63778 15 W.P. No.20424/2022

28. With aforesaid observations, petition stands allowed. No order as to costs.

(VISHAL MISHRA) JUDGE Shbhnkr Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 27-12-2024 11:30:48