# Jai Mangal Ram v. U.P. State Public Service Tribunal, Lko & Ors

- **Citation:** (2024) 1 ILRA 1275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-08
- **Case number:** Writ-A No. 30954 of 2017
- **Bench:** Saumitra Dayal Singh, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-mangal-ram-v-u-p-state-public-service-tribunal-lko-ors-50863
- **Pages:** 15

## Headnote

A. Service Law - Punishment - Dismissal
from service - Charge of misbehaving
with senior officer in an intoxicated
condition - Neither the blood test nor the
urine test was conducted before giving
report by the concerned Medical Officer.
Report was made only on the basis of
smell - Medical Officer has also not been
examined by the Department during the
disciplinary proceedings - Effect - Held,
mere
external
examination
is
not
sufficient proof to hold a person guilty of
consuming alcohol and it cannot be
concluded that he was in intoxicated
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
condition. Therefore, the charge against
the
petitioner
with
regard
to
the
consumption of alcohol during the duty
hours, has not been proved by the
department. (Para 7, 14 and 18)

B. Service Law - Punishment - Dismissal
from service - Disciplinary enquiry -
Predetermined
show
cause
notice
-
Disciplinary Authority has already made
up his mind to accept the finding of
inquiry report - Permissibility - Held, very
purpose of giving show cause notice is
frustrated and such show cause notice is
vitiated and is in clear violation of
principles of natural justice - Before
making
opinion
with
regard
to
the
punishment, which is proposed to be
imposed on a delinquent officer, the
delinquent has to be given opportunity to
submit his representation/reply to inquiry
the report. (Para 20)

C. Service Law - Dismissal from service -
Disproportionate
punishment
-
Departmental enquiry - Fact of abusing to
the superior officer has not been conclusively
proved - Effect - Held, punishment must be
proportionate to the misconduct established
against
a
delinquent employee
- The
punishment imposed on the petitioner on the
basis of the allegations which are not proved,
is disproportionate to the charges leveled
against the petitioner - High Court set aside
the punishment order by reinstating the
petitioner
in
service
with
continuity
alongwith 50% back wages for the period he
was out of service. (Para 19, 22 and 27)

Writ petition allowed. (E-1)

List of cases cited:

## Text

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1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1275
been referred to and relied to hold the
petitioner guilty of the charges so as to
inflict upon him with the punishment under
the order impugned.

26. Now since the order impugned is
based upon the enquiry reports that are in
fact de hors the procedure prescribed and
cannot be sustained in law, I am equally not
able to sustain the order impugned which is
a resultant action based upon such enquiry
reports.

27. In the circumstances, therefore, it
would be more appropriate that the enquiry
into the charges is held after and the
petitioner is given opportunity to get his
statement recorded and also get the
departmental witnesses examined, if he so
desires.

28. In view of the above, writ petition
succeeds and is allowed. Both the enquiry
reports dated 18.09.2019 and 24.09.2021 as
well
as
the
order
impugned
dated
09.10.2023 are hereby quashed. The matter
is remitted to the stage of enquiry.
Petitioner shall be appearing before the
disciplinary authority along with the copy
of this order and the disciplinary authority
thereafter, will be holding oral enquiry in
accordance with law and in the light of
Government Order dated 19th July 2022.
Petitioner's reply is already there with the
enquiry officer and this time the enquiry
officer shall fix a date, time and notify the
place where he would be holding enquiry
and requiring the petitioner to get his
statement recorded. The petitioner will
have an opportunity to present list of
witnesses to whom he may like to cross
examine. This time the enquiry officer shall
record oral statements, examination and
cross examination of witnesses as per the
procedure prescribed under the Rules,
1999. After the enquiry report is submitted,
it will be open for the respondents to
proceed afresh in the light of findings
returned by the enquiry officer and the
reply, if any, submitted by the petitioner
after show cause notice if issued to him.

29. Original records are returned to
learned Additional Chief Standing Counsel.
----------
(2024) 1 ILRA 1275
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Writ-A No. 30954 of 2017

Jai Mangal Ram ...Petitioner
Versus
U.P. State Public Service Tribunal, Lko &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey, Sri Ajay Yadav,
Sri Rahu Yadav, Sri Vinod Kumar Singh, Sri
Vishwadeep Patel

Counsel for the Respondents:
C.S.C.

A. Service Law - Punishment - Dismissal
from service - Charge of misbehaving
with senior officer in an intoxicated
condition - Neither the blood test nor the
urine test was conducted before giving
report by the concerned Medical Officer.
Report was made only on the basis of
smell - Medical Officer has also not been
examined by the Department during the
disciplinary proceedings - Effect - Held,
mere
external
examination
is
not
sufficient proof to hold a person guilty of
consuming alcohol and it cannot be
concluded that he was in intoxicated
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
condition. Therefore, the charge against
the
petitioner
with
regard
to
the
consumption of alcohol during the duty
hours, has not been proved by the
department. (Para 7, 14 and 18)

B. Service Law - Punishment - Dismissal
from service - Disciplinary enquiry -
Predetermined
show
cause
notice
-
Disciplinary Authority has already made
up his mind to accept the finding of
inquiry report - Permissibility - Held, very
purpose of giving show cause notice is
frustrated and such show cause notice is
vitiated and is in clear violation of
principles of natural justice - Before
making
opinion
with
regard
to
the
punishment, which is proposed to be
imposed on a delinquent officer, the
delinquent has to be given opportunity to
submit his representation/reply to inquiry
the report. (Para 20)

C. Service Law - Dismissal from service -
Disproportionate
punishment
-
Departmental enquiry - Fact of abusing to
the superior officer has not been conclusively
proved - Effect - Held, punishment must be
proportionate to the misconduct established
against
a
delinquent employee
- The
punishment imposed on the petitioner on the
basis of the allegations which are not proved,
is disproportionate to the charges leveled
against the petitioner - High Court set aside
the punishment order by reinstating the
petitioner
in
service
with
continuity
alongwith 50% back wages for the period he
was out of service. (Para 19, 22 and 27)

Writ petition allowed. (E-1)

List of cases cited:

1. Delhi Judicial Service Association Vs St. of
Guj.; Cr.L.J. (1991) 3086

2. Bachubhai Hassanalli Karyani Vs St. of Mah.;
(1971) 3 SCC 930

3. Munna Lal Vs U.O.I.; (2010) 15 SCC 399

4. Writ A No. 2230 of 2014; Shiv Raj Singh Vs
St. of U.P. & ors. decided on 28.3.2018
5. Himachal Pradesh St. Electricity Board Ltd. Vs
Mahesh Dahiya; (2017) 1 SCC 768

6. Civil Appeal No. 8349 of 2010 arising out of
SLP (C) No. 19318/2007; Mohd. Yunus Khan Vs
St. of U.P. &
ors. decided on 28.09.2010

7. St. of Mysore Vs K. Manche Gowda; (1964) 4
SCR 540

8. Bhagat Ram Vs St. of H.P.; (1983) 2 SCC 442

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Shivam Pandey learned
counsel
holding brief
of
Sri Rahul
Chaudhary
learned
counsel
for
the
petitioner and Sri Piyush Srivastava learned
Standing Counsel for the State.

2. The present petition has been filed
challenging the impugned orders dated
07.05.2012, 25.09.2012, 29.05.2012 and
also challenging the order dated 11.01.2016
passed by the U.P. State Public Service
Tribunal in Claim Petition No. 1245 of
2013 and also order dated 29.05.2017
whereby the review petition filed by the
petitioner has been rejected.

3. The brief facts of the instant case
are that the petitioner herein was working
as a constable in the Police Line, Varanasi.
The allegation against the petitioner is that
he misbehaved with his senior officer, Mr.
Devi Dayal, being in an intoxicated
condition, for which the complaint was
made against him and he was placed under
suspension and the following charge was
framed against him.

"आप पुनलस लाईि वािाणस में
कायाित है। नदिाींक 15.12.2010 को समय
लगभग 17.30 बजे श्र देव दयाल, प्रनतसाि
निि क्षक (नद्वत य) पुनलस लाईि, वािाणस के
1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1277
सामिे ििे क हालत में अिोभि य हिकत एवीं
अमयाानदत आचिण नकये। पुनलस लाईि में आप
िि ले पदाथा का सेवि नकये हुए पाये गये,
नजसके फलस्वरूप आपका नचनकत्स य पि क्षण
उ०नि० स०पु० श्र पींचिाम कन्नौनजया, आिक्ष
1423 िा०पु० प्रमोद कुमाि, आिक्ष 2213
िा०पु० दनर्चन्द्र, पुनलस लाईि, वािाणस द्वािा
पीं०
द िदयाल
िाजक य
नचनकत्सालय,
वािाणस से किाया गया। नचनकत्स य पि क्षण
में ििाब प िे क पुनष्ट् हुई। आप नडयूि के
दौिाि ििाब प िे तथा पुनलस जैसे अिुिानसत
बल में िहते हुए पुनलस िेगुलेिि के पैिा-373ए
का पालि ि कििे के दोर् पाये गये, नजिके
सम्बन्ध में उ०प्र० अर् िथथ श्रेण के पुनलस
अनर्काि /कमाचाि क (दण्ड एवीं अप ल)
नियमावल - 1991 के नियम 14(1) के तहत
नवभाग य कायावाह का निणाय नलया गया।
उ०प्र० अर् िथथ श्रेण के पुनलस अनर्काि क
(दण्ड एवीं अप ल) नियमावल - 1991 के नियम
14(1)
के
अन्तगात
नवभाग य
कायावाह
सम्पानदत नकये जािे हेतु मुझे िानमत नकया
गया है।"

4. In reply to the said charges, the
petitioner
herein
submitted
his
explanation
dated
11.01.2011
and
categorically submitted that on the date
of alleged incident, he has not consumed
the alcohol, as alleged, nor he has
misbehaved
with
his
senior.
The
petitioner has specifically submitted that
he was sick for sometime, for which he
used
to
consume
the
Ayurvedic
medicines (Drakshasav) and on the date
of alleged incident as well, he had
consumed the baidhyanath (Drakshasav),
which includes alcohol and a report was
got prepared with mala fide intention
against the petitioner herein. It is further
submitted by the petitioner that before
preparing the report with regard to his
intoxication condition neither the urine test
nor the blood test were conducted to arrive
at the specific finding as to whether the
petitioner had consumed the liquor and the
medical report was prepared only by the
external examination. After the explanation
was submitted, the enquiry was conducted
by the Circle Officer, Kotwali, Varanasi
and vide enquiry report dated 27.05.2011,
the Enquiry Officer found the allegations
against the petitioner as true and proved
and proposed for punishment of dismissal
of the petitioner from service in the
following terms:

"इस प्रकाि उपलब्ध साक्ष्योीं एवीं
अनभलेखोीं के अवलोकि से यह स्पष्ट् है क
नदिाींक 15.12.2010 को आिोप जो पुनलस
लाईि में दलेल कि िहा था नक समय 17.30 बजे
सायींकाल प्रनतसाि निि क्षक कायाालय के पास
जोि जोि से गानलयाुँ दे िहा था तथा अिोभि य
हिकत एवीं व्यवहाि कि िहा था तथा कािण
पूछिे पि औि भ उिेनजत होकि गानलयाुँ दे िहा
था तथा ििे क हालत में प्रत त हो िहा था को
एस०आई०ए०प ० श्र पींचम िाम कन्नौनजया व
काीं० 1423 िा०पु० प्रमोद कुमाि व काीं०2213
िा०पु० दनर्चन्द्र के साथ पीं० द िदयाल
अस्पताल वािाणस में नचनकत्स य पि क्षण हेतु
भेजा गया। नचनकत्सक क रिपोिा से आिोप
एल्कोहल (ििाब) नपये हुए पाया गया। आिोप
के चरित्र पींनजका से पाया गया नक वर्ा 2002, वर्ा
2003, वर्ा 2006 तथा वर्ा 2007 में वानर्ाक
मन्तव्य में ििाब प िे क निकायत/अभ्यस्त
हाल अींनकत है। वर्ा 2008में पत्रावल सींख्या- द149/2008, नदिाींक19.07.2008को तत्काल ि
वरिष्ठ पुनलस अर् क्षक, वािाणस द्वािा सेवा से
आिोप को पदच्युत नकया गया था। बाद में
आिोप द्वािा नसनवल नमस यानचका सींख्या-
53039/2009
मािि य
उच्च
न्यायालय,
इलाहाबाद में दाक्तखल नकया गया, नजस पि
जयमींगल
िाम
बिाम
स्ट्ेि
में
नदिाींक
29.07.2008 के परिप्रेक्ष्य में पत्रावल सींख्या- प-
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
779/2009 नदिाींक 22.05.2010 को बहाल नकया
गया है, जो वतामाि में निलक्तम्बत है।

अतः आिोप आिक्ष 742 िा०पु०
जयमींगल िाम (निलक्तम्बत) को ििाब का सेवि
कि पुनलस लाईि परिसि में गाल गलौज कि
स्वेच्छाचारिता एवीं अिुिासिह िता का दोर्
पाते हुए उ०प्र० अर् िथथ श्रेण के पुनलस
अनर्कारियोीं क (दण्ड एवीं अप ल) नियमावल
1991 के नियम 4(1) क(एक) के अन्तगात सेवा
से पदच्युत (नडसनमस) नकया जािा प्रस्तानवत
नकया जाता है।"

5. Subsequent to the enquiry report,
the Deputy Inspector General of Police,
Varanasi, issued a show cause notice dated
10.06.2011, against the petitioner in the
following terms:

"वर्ा 2010 में जब आप इस जिपद
क पुनलस लाईि में नियुि थे नदिाींक
15.12.2010 को समय लगभग 17.30 बजे देव
दयाल प्रनतसाि निि क्षक, नद्वत य पुनलस लाईि
वािाणस के सामिे ििे क हालत में
अिोभि य हिकत एवीं अमयाानदत आचिण
नकये। पुनलस लाईि में आप िि ले पदाथा का
सेवि नकये हुए पाये गये, नजसके फलस्वरूप
आपका नचनकत्स य पि क्षण उ०नि० स०पु० श्र
पींचम िाम कन्नौनजया, आिक्ष 1423 िा०पु०
प्रमोद कुमाि, आिक्ष 2213 िा०पु० दनर्चन्द,
पुनलस लाईि वािाणस द्वािा पींनडत द िदयाल
िाजक य नचनकत्सालय, वािाणस में किाया
गया। नचनकत्स य पि क्षण में आप द्वािा ििाब
प िे क पुनष्ट् हुई। आप ड्यूि के दौिाि ििाब
प िे तथा पुनलस जैसे अिुिानसत बल में िहते
हुए पुनलस िेगुलेिि के पैिा 371ए, का पालि ि
कििे के दोर् पाये गये"

आपके उि कृत्य के नलए तत्काल ि
पुनलस उपमहानिि क्षक, वािाणस द्वािा आपके
नवरुद्ध उ०प्र० अर् िथथ श्रेण के पुनलस
अनर्कारियोीं क (दण्ड एवीं अप ल) नियमावल -
1991 के नियम- 14(1) के अन्तगात नवभाग य
कायावाह पुनलस उपार् क्षक, श्र र्मा नसींह
माछााल को आवींनित क गय , नजिके गैि
जिपद थथान्तिण जािे के उपिान्त प्रश्नगत
नवभाग य कायावाह श्र अिनवन्द कुमाि मौया,
पुनलस उपार् क्षक/स ०ओ० कोतवाल , वािाणस
को आवींनित हुई। प ठास ि अनर्काि द्वािा
नियमािुसाि नवभाग य कायावाह प्रािम्भ कि
आपका बचाव का पूिा अवसि प्रदाि किते हुए
नवभाग य कायावाह पूणा किते हुए अपि
फाइक्तण्डींग नदिाींनकत 27.05.2011 कायाालय को
प्रेनर्त क गई, नजसमें आपका दोर् पूणातया
प्रमानणत पाते हुए आपको उ०प्र० अर् िथथ श्रेण
के पुनलस अनर्कारियोीं क (दण्ड एवीं अप ल)
नियमावल - 1991 के नियम 4(1) (क)(एक) के
अन्तर्गत सेवा से पदच्युत (डिसडिस) करने
की संस्तुडत की र्ई है डिसिे िैं सहित हूँ।

अतः आप इस कािण बताओ िोनिस
प्राक्तप्त के 15 नदवस के अन्दि अपिा नलक्तखत
स्पष्ट् किण प्रेनर्त किें एवीं कािण बतायें नक क्योीं
ि आपके उि कृत्य के नलए उ०प्र० अर् िथथ
श्रेण के पुनलस अनर्कारियोीं क (दण्ड एवीं
अप ल)
नियमावल -
1991
के
नियम
4(1)(क)(एक) के अन्तगात आपको सेवा से
पदच्युत (नडसनमस) कि नदया जाय।

यनद आपका स्पष्ट् किण निर्ाारित
अवनर् में प्राप्त िह ीं होगा तो यह मािकि नक
इस सम्बन्ध में आपको कुछ िह ीं कहिा है, तथा
लगाये आिोप आपको स्व काि है तथा आपके
स्पष्ट् किण क औि अनर्क प्रत क्षा ि किके
एकपक्ष य अक्तन्तम आदेि पारित कि नदया
जायेगा। आपको आश्वस्त नकया जाता है नक
आपके स्पष्ट् किण के प्राप्त होिे पि उस पि
सहािुभूनतपूवाक नवचाि किते हुए गुणदोर् के
आर्ाि पि निणाय नलया जायेगा। फाइक्तण्डींग
1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1279
(उपपनि) क एक प्रनत सींलि कि प्रदाि क
जात है।

ह० अ०

10.06.2011

पुनलस उपमहानिि क्षक,

वािाणस ।"

6. In response to the show cause
notice dated 10.06.2011, the petitioner
herein submitted a detailed reply to the said
show
cause
notice
wherein
it
was
specifically pleaded by the petitioner that
the said show cause notice was issued to
the petitioner herein with a predetermined
mind, wherein the DIG has agreed with the
proposed
punishment
of
dismissal.
Therefore, the said show cause notice was a
merely formality. Thereafter, the Senior
Superintendent of Police, vide order dated
07.5.2012, passed the order of dismissal of
the petitioner from service. Against the said
order dated 07.05.2012, the petitioner
herein preferred an appeal before the
Deputy Inspector General of Police on
02.07.2012, wherein in the memo of
appeal,
the
petitioner
herein
has
categorically stated the said show cause
notice
has
been
issued
with
a
predetermined mind, wherein it was stated
that the recommendations have been made
for the termination of service of the
petitioner with which he is in agreement.
Vide order dated 25.09.2012. The said
appeal of the petitioner herein was
dismissed by the Deputy Inspector General
of Police, Varanasi. Against the order of
dismissal of the said appeal, the petitioner
herein filed a review petition, which was
also dismissed vide order dated 29.05.2013.
Aggrieved by the aforesaid order of
dismissal from service and the dismissal of
the appeal and the review application, the
petitioner herein preferred the direction
Petition No. 1245 of 2013, before the State
Administrative
Services
Tribunal,
Lucknow, which was dismissed vide order
dated 11.01.2016. Against the order dated
11.01.2016, the petitioner herein filed
review petition no. 15 of 2016, which was
also dismissed vide order dated 29.05.2017.
Hence the present petition.

7. Learned counsel for the petitioner
submits that in the instant case the
petitioner herein has been charged and
found guilty on the basis of a complaint
made by the one Mr. Devi Dayal, Inspector
posted in the Police Line to the effect that
the petitioner has misbehaved with him in
an intoxicated condition. In the instant
case, to prove the fact that the petitioner
herein was in an intoxicated condition, a
medical report was obtained from the
Medical Officer only on the external
examination of the petitioner herein.
However, neither the blood test nor the
urine test was conducted before giving such
report by the concerned Medical Officer
and the Medical Officer has also not been
examined by the Department during the
entire proceedings against the petitioner
herein. Therefore, the said medical report
cannot be relied upon to establish the fact
that the petitioner was in an intoxicated
condition. To substantiate his arguments on
the aforesaid point, the learned counsel for
the
petitioner
has
relied
upon
the
judgement of the apex court in Delhi
Judicial Service Association vs. state of
Gujarat : Supreme Court's Cr. L.J. 1991,
Page No. 3086. In the entire proceedings
against the petitioner the enquiry officer as
well as the superior officer acted in a
predetermined mind against the petitioner
herein.

8. Learned counsel for the petitioner
has further submitted that during the
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation against the petitioner herein,
none of the witnesses have supported the
incident except the complainant, Mr. Devi
Dayal. Rather from the statements of the
witnesses during the enquiry, it is apparent
that the incident has not at all taken place at
Police Line as has been alleged during the
investigation. He has referred to the
statements of Sri Panchram Kanaujiya,
Pramod
Kumar,
Dadhichandra
etc.
Therefore, the entire proceedings were
conducted in predetermined mind and the
enquiry report is not sustainable in law.
Learned counsel for the petitioner has
further submitted that while issuing notice
for showing cause as to why the penalty of
dismissal from service may not be imposed
against the petitioner herein, the Deputy
Inspector General of Police has stated that
"सेवा से पदच्युत (नडसनमस) कििे क सींस्तुनत
क गई है नजसमे मैं सहमत हुँ।". The aforesaid
averments in the show cause notice clearly
demonstrates the predetermined mind of
the DIG, Police, Varanasi. Therefore, the
entire proceedings against the petitioner
was vitiated and was conducted in a
predetermined mind. Therefore, the same is
illegal and is liable to be quashed.

9. Learned counsel for the petitioner
further submitted that while passing the
punishment
order
the
Senior
Superintendent of Police has taken into
consideration the conduct of previous
entries made in the character roll of the
petitioner herein, for which no notice has
been issued to the petitioner herein. Had
the notice with regard to the previous
conduct of the petitioner or the entries in
the character roll of the petitioner would
have been indicated in the show cause
notice, the petitioner could have replied the
same
appropriately.
However,
while
passing the dismissal order, the previous
entries in the Character Roll of the
petitioner have been considered but no
opportunity has been afforded to the
petitioner to counter the same. Learned
counsel for the petitioner further submits
that the punishment of dismissal is
disproportionate to the misconduct alleged
to have been committed by the petitioner
herein.

10. Learned counsel for the State
submitted that the police forces are the
disciplined
force.
Therefore,
any
misbehaviour by the police personnel
against their superior officer is not
permitted. The petitioner has been found in
an
intoxicated
condition
and
was
misbehaving with his superior officers due
to intoxication and the charges were proved
against him in a detailed enquiry conducted
by the Enquiry Officer, giving full
opportunity of hearing to the petitioner
herein. So far as the non-examination of
Medical Officer is concerned, the learned
counsel for the State submitted that the
petitioner was apparently in intoxicated
condition, which is supported by the
witnesses and the medical report as well. In
the disciplinary proceedings, the doctors
are not required to be examined as the same
was not a criminal trial where the
allegations are required to be proved
beyond
reasonable
doubt.
In
the
disciplinary proceedings, the probability
and preponderance of the allegations are
sufficient to prove the charges against the
delinquent officer.

11. Learned counsel for the State
submitted that alongwith show cause notice
the enquiry report was given to the
petitioner herein while calling for his
response on the enquiry report wherein
there is reference to the previous conduct of
the petitioner herein. Therefore, merely
because the previous conduct has not been
1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1281
mentioned in the show cause notice the
same cannot be faulted because of the fact
that the previous conduct of the petitioner
was already mentioned in the enquiry
report, which was in due notice of the
petitioner herein.

12. Looking at the previous conduct
coupled with the conduct of the petitioner
in the instant case, the punishment of
dismissal from service has been awarded in
the instant case, which cannot be said to be
disproportionate punishment. Therefore,
the learned counsel for the State has prayed
for dismissal of the instant petition.

13. We have considered the rival
submissions made by the learned counsels
for the parties and have carefully perused
the record of the case.

14. We proceed to consider the first
submission made by the learned counsel for
the
petitioner
with
regard
to
the
intoxication of the petitioner herein at the
time of incident, without the urine test or
the blood test, for which the finding has
been recorded against the petitioner, only
because of the smell of the alcohol found
by the doctor, which is not sufficient to
prove the intoxication of the petitioner
herein.

15.

In
Bachubhai
Hassanalli
Karyani v. State of Maharashtra : (1971)
3 SCC 930, the Apex Court, on the facts
that the doctor had admitted that a person
could smell of alcohol without being under
the influence of drinking and without the
urine test or the blood test, held that it
cannot be concluded that the appellant was
intoxicated at the time of incident.

16. In Munna Lal v. Union of India,
(2010) 15 SCC 399, where the person was
suspected of being in a drunken condition
due to the smell of alcohol, he was taken
for the medical check-up and the doctor on
duty examined and there was suspicion of
mild smell of alcohol on the medical
examination. On such facts, it was held by
the Apex Court that in the absence of any
positive evidence, the charges levelled
against the applicant of consuming the
alcohol was not proved satisfactorily.

17. In Writ A No. 2230 of 2014 (Shiv
Raj Singh vs. State of U.P.,and 6 Others) a
Division
Bench
of
this
Court
vide
judgement dated 28.3.2018 has held that
without the blood and urine sample of the
person, it cannot be concluded that he has
consumed alcohol and in the absence of
such report of blood or urine sample,
merely on the basis of the external
examination of a person, such medical
report cannot be relied upon and no major
punishment could be awarded.

18. In the instant case the petitioner
herein was taken to the medical officer who
has only externally examined the petitioner
and having found the smell of alcohol
concluded that the petitioner herein had
consumed the alcohol. Therefore, mere
external examination is not sufficient proof
to hold a person guilty of consuming
alcohol and it cannot be concluded that he
was in intoxicated condition. Therefore, the
charge against the petitioner with regard to
the consumption of alcohol during the duty
hours, is in the considered opinion of this
Court, has not been proved by the
department, therefore, it cannot be held that
the petitioner was guilty of the charge of
consuming the alcohol during the duty
hours.

19. So far as the other charge with
regard to misbehaviour by the petitioner
1282 INDIAN LAW REPORTS ALLAHABAD SERIES
with his superior officer is concerned, the
witness Yogendra Nath in his crossexamination
during
the
inquiry
has
admitted that he has not heard the petitioner
using abusive language or misbehaviour by
the petitioner herein. The other witness, Sri
Pancham Lal Kanujia, in his crossexamination has admitted that the petitioner
was shouting and hurling abuses below the
Banyan tree, adjoining the office of R.I.-II.
However, on further cross-examination, he
has admitted the fact that on 01.01.2011
when counting was going on the nephew of
the petitioner, namely, Anil Kumar Anchal,
who was a constable, was abused by the
Counting Clerk, namely Akhilesh Kumar,
when Anil Kumar Anchal said that he don't
know with regard to the Dak duty then
Counting Clerk asked him to go to the
Banglow of DIG and to bring the Dak. On
this, he showed indiscipline. Thereafter, the
petitioner came there and argued in favour
of his nephew, namely Anil Kumar Anchal.
In further cross-examination, Sri Pancham
Kumar Ram, Kanaujia has admitted that he
has not not made any entry with regard to
any abuses hurled by the petitioner herein.
Another constable-witness, namely Promod
Kumar has admitted in cross-examination
that there was no resistance on the part of
the petitioner while he was asked to sit on
the vehicle for medical test, he did not
resist the same and he has also shown his
ignorance as to what has happened inside
the
Hospital
during
his
medical
examination. Another witness- constable,
Dadhichand has admitted in the crossexamination that no abuses were hurled by
the petitioner in front of him. Shri Devi
Dayal,
the
Inspector,
in
his
crossexamination has admitted that he was alone
in the evening and was sitting in his office
and has not heard any abuses hurled by the
petitioner rather, he has said that there was
adjoining store and the G.D. Office,
therefore some persons might have heard
but none of such witness has been produced
who has admitted that any abuses were
hurled by the petitioner herein to Devi
Dayal, Inspector, in presence of anyone
inside the office. Therefore, from the
aforesaid evidence, it is apparent that the
fact of abusing to the superior officer has
not been conclusively proved during the
departmental inquiry conducted against the
petitioner herein. Therefore, from the
aforesaid inquiry report it is apparent that
neither the charge of consuming alcohol
nor the misbehaviour is proved during the
departmental inquiry and he has been held
guilty only on the statement of the
Inspector, Mr. Devi Dayal. The petitioner
has explained the fact that since he was
taking the Ayurvedic medicines, therefore,
there is possibility of smell of alcohol.
However, he had not consumed the alcohol
and from the story as emerged from the
cross-examination of the witnesses, it has
emerged that there was some dispute
between the Counting Clerk, namely
Akhilesh Kumar and the nephew of the
petitioner-constable, Anil Kumar, with
regard to assigning some duty, for which
the petitioner herein has intervened and this
may be a reason of false dismissal of the
petitioner from service, without there being
any proof of misbehaviour or abusive
language used by the petitioner. It has been
further argued that after the inquiry report,
the DIG has issued a show cause notice
with predetermined mind that there is a
recommendation for dismissal of his
service to which the DIG has already been
agreed. Therefore, the show cause notice
was mere a formality. After the conclusion
of the inquiry report, it was obligatory on
the part of the Disciplinary Authority to
give a show cause notice before making up
his mind with regard to the punishment
proposed by the Enquiry Officer. In
1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1283
Himachal Pradesh State Electricity Board
Ltd. vs. Mahesh Dahiya : (2017) 1 SCC
768, the abuse has held as under :

"23. The basis of coming to the
conclusion by both the learned Single
Judge and the Division Bench that
disciplinary authority has violated the
principle of natural justice is based on the
fact that although the enquiry report was
sent to the writ petitioner by the letter
dated 2-4-2008, the disciplinary authoritycum-whole-time members have already
come to the opinion on 25-2-2008 that the
writ petitioner be punished with major
penalty. The Division Bench of the High
Court has placed reliance on Union of
India v. R.P. Singh [Union of India v. R.P.
Singh, (2014) 7 SCC 340 : (2014) 2 SCC
(L&S) 494] .

24. In the above case the issue
was as to whether non-supply of the copy of
advice of UPSC to the delinquent officer at
pre-decision stage violates the principle of
natural justice. This Court placed reliance
on the Constitution Bench judgment in
ECIL v. B. Karunakar [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC
(L&S) 1184] and laid down the following
in para 21 : (R.P. Singh case [Union of
India v. R.P. Singh, (2014) 7 SCC 340 :
(2014) 2 SCC (L&S) 494] , SCC p. 349)

"21. At this juncture, we would
like to give our reasons for our respectful
concurrence with S.K. Kapoor [Union of
India v. S.K. Kapoor, (2011) 4 SCC 589 :
(2011) 1 SCC (L&S) 725] . There is no
cavil over the proposition that the language
engrafted in Article 320(3)(c) does not
make the said article mandatory. As we
find, in T.V. Patel case [Union of India v.
T.V. Patel, (2007) 4 SCC 785 : (2007) 2
SCC (L&S) 98] , the Court has based its
finding on the language employed in Rule
32 of the Rules. It is not in dispute that the
said Rule from the very inception is a part
of the 1965 Rules. With the efflux of time,
there has been a change of perception as
regards the applicability of the principles
of natural justice. An enquiry report in a
disciplinary proceeding is required to be
furnished to the delinquent employee so
that
he
can
make
an
adequate
representation
explaining
his
own
stand/stance. That is precisely what has
been laid down in B. Karunakar case
[ECIL v. B. Karunakar, (1993) 4 SCC 727 :
1993 SCC (L&S) 1184] . We may
reproduce the relevant passage with profit
: (B. Karunakar case [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC
(L&S) 1184] , SCC p. 756, para 29)

'29. Hence it has to be held that
when the enquiry officer is not the
disciplinary
authority,
the
delinquent
employee has a right to receive a copy of
the enquiry officer's report before the
disciplinary
authority
arrives
at
its
conclusions with regard to the guilt or
innocence of the employee with regard to
the charges levelled against him. That right
is a part of the employee's right to defend
himself against the charges levelled against
him. A denial of the enquiry officer's report
before the disciplinary authority takes its
decision on the charges, is a denial of
reasonable opportunity to the employee to
prove his innocence and is a breach of the
principles of natural justice.'"

There can be no dispute to the
above proposition.

25. The Constitution Bench in
ECIL v. B. Karunakar [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC
(L&S) 1184] after elaborately considering
1284 INDIAN LAW REPORTS ALLAHABAD SERIES
the principle of natural justice in the
context of the disciplinary inquiry laid
down the following in paras 29, 30(iv) and
(v) : (SCC pp. 756-58)

"29. Hence it has to be held that
when the enquiry officer is not the
disciplinary
authority,
the
delinquent
employee has a right to receive a copy of
the enquiry officer's report before the
disciplinary
authority
arrives
at
its
conclusions with regard to the guilt or
innocence of the employee with regard to
the charges levelled against him. That right
is a part of the employee's right to defend
himself against the charges levelled against
him. A denial of the enquiry officer's report
before the disciplinary authority takes its
decision on the charges, is a denial of
reasonable opportunity to the employee to
prove his innocence and is a breach of the
principles of natural justice.

30. ... (iv) In the view that we
have taken viz. that the right to make
representation to the disciplinary authority
against the findings recorded in the enquiry
report is an integral part of the opportunity
of defence against the charges and is a
breach of principles of natural justice to
deny the said right, it is only appropriate
that the law laid down in Mohd. Ramzan
case [Union of India v. Mohd. Ramzan
Khan, (1991) 1 SCC 588 : 1991 SCC (L&S)
612] should apply to employees in all
establishments whether Government or
non-government, public or private. This
will be the case whether there are rules
governing the disciplinary proceeding or
not and whether they expressly prohibit the
furnishing of the copy of the report or are
silent on the subject. Whatever the nature
of punishment, further, whenever the rules
require an inquiry to be held, for inflicting
the punishment in question, the delinquent
employee should have the benefit of the
report of the enquiry officer before the
disciplinary authority records its findings
on the charges levelled against him. Hence
question (iv) is answered accordingly.

(v) The next question to be
answered is what is the effect on the order
of punishment when the report of the
enquiry officer is not furnished to the
employee and what relief should be granted
to him in such cases. The answer to this
question has to be relative to the
punishment awarded. When the employee is
dismissed or removed from service and the
inquiry is set aside because the report is
not furnished to him, in some cases the
non-furnishing of the report may have
prejudiced him gravely while in other cases
it may have made no difference to the
ultimate punishment awarded to him.
Hence to direct reinstatement of the
employee with back wages in all cases is to
reduce the rules of justice to a mechanical
ritual.
The
theory
of
reasonable
opportunity and the principles of natural
justice have been evolved to uphold the rule
of law and to assist the individual to
vindicate his just rights. They are not
incantations to be invoked nor rites to be
performed on all and sundry occasions.
Whether in fact, prejudice has been caused
to the employee or not on account of the
denial to him of the report, has to be
considered on the facts and circumstances
of each case. Where, therefore, even after
the furnishing of the report, no different
consequence would have followed, it would
be a perversion of justice to permit the
employee to resume duty and to get all the
consequential benefits. It amounts to
rewarding the dishonest and the guilty and
thus to stretching the concept of justice to
illogical
and
exasperating
limits.
It
amounts to an "unnatural expansion of
1 All. Jai Mangal Ram Vs. U.P. State Public Service Tribunal, Lko & Ors.
1285
natural
justice"
which
in
itself
is
antithetical to justice."

26. Present is not a case of not
serving the enquiry report before awarding
the punishment rather the complaint has
been made that before sending the enquiry
report to the delinquent officer, the
disciplinary authority has already made up
its mind to accept the findings of the
enquiry report and decided to award
punishment of dismissal. Both the learned
Single Judge and the Division Bench on the
aforesaid premise came to the conclusion
that the principle of natural justice has
been violated by the disciplinary authority.
The Division Bench itself was conscious of
the issue, as to whether, inquiry is to be
quashed from the stage where the inquiry
officer/disciplinary
authority
has
committed fault i.e. from the stage of Rule
15 of the CCS (CCA) Rules as non-supply
of the report. Following observations have
been made in the impugned judgment [H.P.
SEB v. Mahesh Dahiya, 2015 SCC OnLine
HP 818] by the Division Bench in para 21 :
(Mahesh Dahiya case [H.P. SEB v. Mahesh
Dahiya, 2015 SCC OnLine HP 818] , SCC
OnLine HP)

"21. Having said so, the core
question is - whether the inquiry is to be
quashed from the stage where the inquiry
officer/disciplinary
authority
has
committed fault i.e. from the stage of Rule
15 of the CCS (CCA) Rules i.e. non-supply
of enquiry report, findings and other
material relied upon by the inquiry
officer/disciplinary authority to the writ
petitioner-respondent herein to explain the
circumstances, which were made basis for
making foundation of enquiry report or is it
a case for closure of the inquiry in view of
the fact that there is not even a single iota
of evidence, prima facie, not to speak of
proving by preponderance of probabilities,
that the writ petitioner has absented
himself wilfully and he has disobeyed the
directions?"

31. Both the learned Single Judge
and the Division Bench have heavily relied
on the fact that before forwarding the copy
of the report by the letter dated 2-4-2008
the disciplinary authority-cum-whole-time
members have already formed an opinion
on 25-2-2008 to punish the writ petitioner
with major penalty which is a clear
violation of the principles of natural
justice. We are of the view that before
making opinion with regard to punishment
which is to be imposed on a delinquent, the
delinquent has to be given an opportunity
to submit the representation/reply on the
enquiry report which finds a charge proved
against the delinquent. The opinion formed
by the disciplinary authority-cum-wholetime members on 25-2-2008 was formed
without there being benefit of comments of
the writ petitioner on the enquiry report.
The writ petitioner in his representation to
the enquiry report is entitled to point out
any defect in the procedure, a defect of
substantial nature in appreciation of
evidence, any misleading of evidence both
oral or documentary. In his representation
any inputs and explanation given by the
delinquent
are
also
entitled
to
be
considered by the disciplinary authority
before it embarks with further proceedings
as per statutory rules. We are, thus, of the
view that there was violation of principle of
natural justice at the level of disciplinary
authority when opinion was formed to
punish the writ petitioner with dismissal
without forwarding the enquiry report to
the delinquent and before obtaining his
comments on the enquiry report. We are,
thus, of the view that the order of the High
Court setting aside the punishment order as
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
well as the appellate order has to be
maintained.

32.
In
view
of
the
above
discussion, we are of the view that present
is the case where the High Court while
quashing the punishment order as well as
appellate order ought to have permitted the
disciplinary authority to have proceeded
with the inquiry from the stage in which
fault was noticed i.e. the stage under Rule
15 of the Rules. We are conscious that
sufficient time has elapsed during the
pendency of the writ petition before the
learned Single Judge, the Division Bench
and before this Court, however, in view of
the interim order passed by this Court
dated 31-8-2015 [H.P. SEB v. Mahesh
Dahiya, SLP (C) CC No. 15656 of 2015,
order dated 31-8-2015 (SC), wherein it was
directed:"Delay condoned. Issue notice. In
the meanwhile, there shall be stay of
operation of the impugned order dated 9-42015 passed by the High Court of
Himachal Pradesh in LPA No. 340 of 2012
(H.P. SEB v. Mahesh Dahiya, 2015 SCC
OnLine HP 818). Mr Aditya Singh, learned
counsel accepts notice and seeks some time
to file reply. List the matter immediately
after the pleadings are complete."] no
further steps have been taken regarding
implementation of the order of the High
Court. The ends of justice would be served
in disposing of this appeal by fixing a timeframe for completing the proceeding from
the stage of Rule 15."

20. In the aforesaid judgement, it has
been categorically held that while issuing
the show cause notice, the Disciplinary
Authority has already made up his mind to
accept the finding of inquiry report and
award of the punishment for dismissal.
Therefore, the very purpose of giving such
show cause notice is frustrated and such
show cause notice is vitiated and is in clear
violation of principles of natural justice.
We are of the view that before making
opinion with regard to the punishment,
which is proposed to be imposed on a
delinquent officer, the delinquent has to be
given
opportunity
to
submit
his
representation/reply to inquiry the report.

21. In the instant case, while issuing
show cause notice, the DIG, Varanasi, has
not
only
informed
about
the
recommendation for dismissal but had also
given
his
conclusion
to
such
recommendation that he is in agreement
with such recommendation for dismissal of
the delinquent. Therefore, the instant show
cause notice dated 10.06.2011, issued by
DIG, Varanasi, is violative of the principles
of natural justice. With such determination
and following the such determination by
the DIG, Police, the Sr.