LODHA, J. - (1.) THIS writ petition is directed against the order dated 31. 12. 93 passed by Superintendent of Police, Sri Ganganagar, whereby penalty of withholding of one grade increment with cumulative effect was inflicted on the petitioner for the charges of mis conduct proved against him, and the order dated 9. 8. 94 passed by the Appellate Authority, whereby while rejecting the appeal preferred by the petitioner against the aforesaid order passed by the Disciplinary Authority, the punishment imposed has been enhanced and the petitioner has been ordered to be reverted from the post of Head Constable to the post of Constable for a period of one year.
(2.) BRIEFLY stated facts of the case are that the petitioner holding the post of Head Constable was posted as Reader in the Circle Office, Sri Karanpur, District Sri Ganganagar. He was served with a charge sheet alleging therein that on 4. 10. 92 during the inspection by the Deputy Inspector General Police, Bikaner, he appeared before the Circle Officer, Karanpur, after consuming liquor and thus breached the discipline of the office. It was further alleged that the petitioner was warned time and again not come to the office after consuming the liquor but he did not care to obey the instructions issued by the Circle Officer. A reply to the charge sheet was filed on behalf of the petitioner which was not found satisfactory by the Disciplinary Authority, therefore, an Inquiry Officer was appointed to inquire into the charges of mis conduct levelled against the petitioner. After completion of the inquiry, the Inquiry Officer submitted the inquiry report to the Disciplinary Authority, who in his turn while supplying the copy of the inquiry report to the petitioner, issued a show cause notice to him as to why the punishment of removal from service may not be imposed upon him for the charges of misconduct proved against him. The petitioner submitted his representation stating therein that so far as charge regarding consuming liquor is concerned, that has been held to be proved against him on the basis of the Doctor's report (PW. 5) and the statement of Shri Ramesh Chandra Sharma, Circle Officer, Sri Karanpur (PW. 6), who was complainant in the matter. It was pointed out that the Doctor has given the report without conducting blood and urine test, presuming that since smell of alcohol was coming out of the mouth of the petitioner, therefore, he has consumed the liquor. It was stated that solely on the basis of Doctor's report, the petitioner cannot be held guilty of the charges of misconduct levelled against him. However, the Disciplinary Authority after examination of the material on record, concurred with the findings recorded by the Inquiry Officer and accordingly, while holding the petitioner guilty of the charges of misconduct levelled against him, inflicted punishment of one grade increment with cumulative effect vide order dated 21. 12. 93. Aggrieved by the order of punishment, the petitioner preferred an appeal before the Appellate Authority. After examination of the material on record and the punishment order passed the Disciplinary Authority, the Appellate Authority being of the opinion that looking to the gravity of misconduct proved the punishment inflicted deserves to be enhanced, issued a show cause notice to the petitioner as to why he may not be reverted from the post of Head Constable to the post of Constable for a period of 5 years. After giving an opportunity of hearing to the petitioner, vide order dated 9. 8. 94, the Appellate Authority while rejecting the appeal preferred by the petitioner, enhanced the punishment imposed and the petitioner was ordered to be reverted from the post of Head Constable to the post of Constable for a period of one year. It is contended by the learned counsel for the petitioner that admittedly on account of holiday on 4. 10. 92, the petitioner was not on duty, however, he attended the office on being called by the Circle Officer and at the relevant time he was not in intoxicated condition. The learned counsel contended that the petitioner has been held guilty solely on the basis of the Doctor's report, who had never conducted petitioner's blood and urine test. Learned counsel submitted that it is not in dispute that the opinion of the Doctor regarding the consumption of liquor by the petitioner is solely based on alleged smell of liquor emitting from his mouth. The learned counsel submitted that the Inquiry Officer, the Disciplinary Authority so also the Appellate Authority have not considered the evidence on record in correct perspective. The evidence attributing towards the innocence of the petitioner has altogether been ignored. The learned counsel submitted that both the authorities have not taken into consideration the statements of the witnesses, who have stated in unequivocal terms that the petitioner did not appear to be in intoxicated condition. Above all the learned counsel submitted that the Doctor's report without conducting urine and blood examination solely based on alleged smell of liquor emitting from the mouth of the petitioner cannot be made basis for holding him guilty. In this regard, learned counsel has relied upon a decision of this Court in the matter of `mool Chand vs. State of Rajasthan' (S. B. Civil Writ Petition No. 2276/2002 decided on October 31, 2003 ). Per contra, the learned Additional Government Counsel submitted that on the basis of the evidence on record the petitioner has rightly been held guilty of the charges of misconduct levelled against him. The Disciplinary Authority has examined the evidence on record objectively and findings arrived at do not suffer from any infirmity or illegality. The learned counsel urged that looking to the gravity of misconduct proved the Appellate Authority was justified in enhancing the punishment imposed upon the petitioner from withholding one grade increment with cumulative effect to reversion to the lower post for a period of one year. The learned counsel submitted that in view of the concurrent finding arrived at by both the authorities, this Court would not like to reappreciate the evidence on record and substitute the concurrent finding arrived at by both the authorities.
(3.) A perusal of the inquiry report reveals that the petitioner has been held guilty of the charges of misconduct levelled against him on the basis of the statements of Shri Ramesh Chandra Sharma, Circle Officer, Karanpur, who is complainant in the matter and Dr. Jaswant Singh, who had conducted medical examination of the petitioner to find out as to whether he had consumed the liquor and was in intoxicated condition. Mr. Ramesh Chandra Sharma has stated in his statement that on 4. 10. 92, he had directed the employees posted in his office to attend the office on account of urgent government work. It is further started that the petitioner attended the office after consuming liquor in intoxicated condition, therefore, he directed Hema Ram, Inspector to get examined the petitioner by a doctor and to produce the report and on receiving the report, the same was forwarded by him to the Superintendent of Police, Sri Ganganagar. Dr. Jaswant Singh (PW. 5) has stated that on examination of the petitioner, he found that the petitioner had consumed the liquor but, he was not in intoxicated condition. He has categorically stated that he had not taken the sample the blood and urine of the petitioner for examination. It is pertinent to note that Hema Ram, Inspector who had taken the petitioner to the doctor for examination has categorically stated that there was absolutely no complaint against the petitioner from the public or the employees regarding his habit of consuming liquor and he had never seen him in the drunken condition. Yet another witness Mr. Sultan Singh, who was posted as Head Constable in the Police Station, Karanpur has also categorically stated that the petitioner did not appear to have consumed the liquor. Mr. Sahab Ram, Head Constable has also endorsed the statement given by Shri Sultan Singh Shri Iqbal Singh, Head Constable has also categorically stated that the petitioner did not appear to have consumed the liquor. Obviously, the petitioner was sent to the doctor for examination so as to ascertain the fact as to whether the had actually consumed the liquor and was in intoxicated condition. It goes without saying that in order to establish the diagnosis of drunkenness, the doctor should carefully examine the person concerned and should collect the blood and urine samples for chemical analysis. Besides the odour of alcohol in the breath, there are many more signs which are required to be noticed while examining the person said to be in the drunken condition, such as, loss of clearness in intellect and control of himself, unsteady gait, dry and sticky lips, congested eyes, sluggish and dilated pupils, increased pulse rate, unsteady and thick voice etc. But, it appears that none such sign have been noticed by the doctor while examining the petitioner. If, the doctor was to give his finding only on the basis of the odour of alcohol in the breath of the petitioner then, there was no necessity even to refer the petitioner for examination to the doctor. The doctor's report solely based on alleged odour of liquor emitting from the mouth the petitioner, cannot be made basis for holding him guilty, more so, when all other prosecution witnesses except the complainant Mr. Ramesh Chandra Sharma, have categorically stated that the petitioner did not appear to be in drunken condition. The finding of guilt recorded by the inquiry officer concurred by the Disciplinary Authority, ignoring the statements of the witnesses attributing towards the innocence of the petitioner, cannot be sustained. It is true that in the matter of disciplinary proceedings, the strict rules of evidence do not apply, the charges are not required to be proved beyond doubt, and this Court in exercise of its extra ordinary jurisdiction cannot sit in appeal over the findings arrived at by the Disciplinary Authority but, in the instant case, a perusal of the material on record goes to show that the charge of the petitioner being found in intoxicated condition cannot be said to be proved against him even on the yardstick of the proof on the basis of preponderance of the probabilities. ;