SPA/325/2021 of SUMAN KISHOR TAMTA Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

AND

THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA

SPECIAL APPEAL NO. 325 OF 2021

04[TH ]OCTOBER, 2021

BETWEEN:

Suman Kishor Tamta

…..Appellant.

And

State of Uttarakhand & others

….Respondents.

The Court made the following:

JUDGMENT: (per Hon’ble The Chief Justice Sri Raghvendra Singh Chauhan)

Since the sufficient cause has been shown by the appellant for the delay of 97 days in preferring the present Special Appeal, the delay is hereby condoned by this Court. Delay Condonation Application is disposed of.

2. Aggrieved by the order dated 04.05.2021, passed by learned Single Judge, in Writ Petition (S/S) No.1289 of 2015, whereby the learned Single Judge has dismissed the writ petition, the appellant has filed the present appeal.

3. Briefly, the facts of the case are that, on 30.10.1998, the appellant was appointed as Police

Constable. On 17.04.2013, he was on duty at the Purnagiri Mela. Sub-Inspector suspected that the appellant was in intoxicated condition on that date. The appellant was directed to report back to the Kotwali. The appellant was also directed to undergo medical examination for intoxication. On 18.04.2013, the appellant was withdrawn from the Mela duty; and he was directed to report to the Police Line, Almora. On 29.04.2013, the appellant was suspended. On 12.08.2013, the petitioner was furnished with charge-sheet. Departmental Enquiry was conducted; on 05.10.2013, the Inquiry Officer submitted his report wherein the appellant was found guilty of intoxication while on duty on 17.04.2013, and was also found to be absent without leave from 18.04.2013 to 01.05.2013. Therefore, on 18.11.2013, the petitioner was terminated from service.

4. Aggrieved by the termination order dated 18.11.2013, the appellant filed departmental appeal, which was also dismissed by order dated 15.03.2014. Consequently, the appellant filed revision petition. The revision petition was also dismissed, by order dated 09.10.2014.

5. Aggrieved by his termination order dated 18.11.2013, and by the orders, dated 15.03.2014 and 09.10.2014, the appellant filed writ petition before the learned Single Judge, namely Writ Petition (S/S) No.267 of 2015. By order dated 17.04.2015, learned Single Judge had

disposed of the writ petition with the liberty to the appellant to file fresh appeal/representation before the Appellate Authority, stating all the points which have been raised in the writ petition.

6. The appellant again filed an appeal, which was rejected by order dated 23.06.2015. Aggrieved by the said order, the appellant has filed the second writ petition, namely Writ Petition (S/S) No.1289 of 2015. As mentioned hereinabove, the learned Single Judge dismissed the writ petition. Hence, the present appeal before this Court.

7. Mr. Ajay Veer Pundir, the learned counsel for the appellant, has raised the following contentions:-

Firstly, the termination order is shockingly disproportionate to the alleged misconduct. Even if the appellant was absent from 18.04.2013 to 01.05.2013 without leave, his service should not have been terminated on this ground. In order to buttress his plea, the learned counsel has relied upon the case of Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and other, [(2004) 4 SCC 560].

Secondly, the appellant has served the police force from 30.10.1998 till his termination order dated 18.11.2013. The termination is, indeed, highly disproportionate to the alleged misconduct of being intoxicated during the Mela duty.

Instead, the appellant could have been punished with minor punishment.

Thirdly, the termination is the harshest punishment

that can be imposed upon Government servant. Repeatedly the Hon’ble Supreme Court has opined that harshest punishment should be imposed only in the rarest of the rare case. Being intoxicated does not come within the category of being “rarest of the rare case”. The learned Single Judge has ignored all these factors while passing the impugned order. Hence, the impugned order passed by the learned Single Judge deserves to be set-aside by this Court.

8. Mr. B.P.S. Mer, the learned Brief Holder appearing of the State, has submitted the following counter-arguments:-

Firstly, two charges were framed against the appellant, namely:-

(a) That he was absent without leave from 18.04.2013 till 01.05.2013;

(b) That on 17.04.2013, he was found in an intoxicated condition while discharging his Mela duty. Therefore, his services were not terminated solely on the ground of being absent without leave.

Secondly, the case of Shri Bhagwan Lal Arya

(supra) is distinguishable in the factual matrix. For, in the said case, the delinquent officer has submitted the medical evidence in order to justify his absence. However, in the present case, no such medical evidence has been produced to justify the appellant’s absence for almost thirteen days.

Thirdly, since the appellant belongs to discipline force, his being intoxicated in Mela duty, adversely affects the public image of the police force. Therefore, due to his delinquent act, the employer has lost faith and confidence in the appellant as an employee. Both in order to maintain discipline within the force, and in order to strengthen the image of the police in the public mind, the department had no other option, but to terminate the services of the appellant.

Fourthly, police officer who violates the police discipline of the police force, by act of getting drunk while discharging public duty, such case does fall within the category of being “rarest of the rare”.

Lastly, relying on the cases of State of Karnataka

vs. N. Gangaraj, [(2020) 3 SCC 423], and Union of India v. P. Gunasekaran, [(2015) 2 SCC 610],the learned counsel has pleaded that the scope of interfering with the punishment order by the High Court is an extremely limited one. The learned counsel has submitted that the High Court

cannot re-appreciate the evidence, or interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law, or go into the adequacy of the evidence, or go into the reliability of the evidence, or interfere, if there be some legal evidence on which findings can be based, or correct the error of fact however grave it may appear to be, or go into the proportionality of punishment unless it shocks its conscience.

Moreover, the appellant has not pleaded that the procedure established by law has been violated or, termination order has been passed due to malice in law. Therefore, the learned counsel has supported the impugned order passed by the learned Single Judge.

9. Heard the learned counsel for the parties, and perused the impugned order.

10. In the case of N.Gangaraj (supra), the Hon’ble Supreme Court has reiterated its views expressed in the case of P. Gunasekaran (supra). In the case of P. Gunasekaran (supra), the Apex Court had held as under:-

“13. In another judgment reported as Union of India v. P. Gunasekaran: (2015) 2 SCC 610, this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings:

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

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience”.

Therefore, the power of judicial review in case of

punishment imposed after the departmental inquiry is extremely limited one. One of the areas in which the Court can interfere with is the quantum of punishment. Therefore, the issue before this Court is whether the termination order is shockingly disproportionate to the alleged misconduct committed by the appellant, or not?

12. Admittedly, the appellant was absent from his duty for almost thirteen days without any leave. Undoubtedly, the appellant belonged to discipline force which upholds the rule of law. Therefore, member of the police force cannot indulge in violation of the law. Hence, the appellant was duty bound to observe the provisions of service rules. The appellant was well-aware that in case he has to leave the Headquarters, he must apply for the leave. He is permitted to leave the Headquarters only after the leave has been sanctioned. Sudden disappearance of the appellant from his police force would have created difficulties for the police force department. Yet without any rhyme or reason, the appellant disappeared for thirteen days. Most importantly, he disappeared immediately after he was allegedly caught in an

intoxicated stage. Therefore, the appellant is unjustified in claiming that he has been imposed with shockingly disproportionate punishment.

13. The case of Bhagwan Lal Arya (supra) is clearly distinguishable on the factual matrix. For, in the said case, the petitioner therein had submitted the medical evidence in order to justify his absence. However, in the present case, the appellant has neither submitted any medical evidence, nor furnished any justifiable reasons for his absence of thirteen days. Therefore, the case of Bhagwan Lal Arya (supra) does not come to the rescue of the appellant.

14. Once police personnel is deputed to Mela, he is duty bound to maintain law and order, and to provide security to the public at large. In Mela, he is role model for the public at large. Yet, when he is found to be intoxicated, not only his personal image, but the very image of the police department has been tarnished. When the public at large sees police personnel under the influence of alcohol, the public loses its faith in the police force.

15. In such circumstances, the punishment of termination cannot be said to be shockingly disproportionate. In fact, the punishment imposed upon the appellant is legally warranted, and legally justified.

Lastly, even if, the appellant discharged his duty

from 1998 till the date the misconduct was committed, even then the pristine service record would not come to the rescue of the appellant. For, single instance may tarnish the entire service record.

17. For the reasons stated above, this Court does not find any merit in the present appeal. It is, hereby, dismissed. No costs.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

Dated: 04[th] October, 2021NISHANT

(ALOK KUMAR VERMA, J.)