The proportionality of punishment in disciplinary proceedings and the consideration of previous misconduct in determining the appropriate punishment.

JUDGMENT :

ASHA MENON, J.

CM No.1216/2021

Exemption allowed, subject to all just exceptions.

W.P.(C) 470/2021 & CM No.1215/2021

1. The petition has been heard by way of video conferencing.

2. The petitioner is an Ex-constable of the Central Industrial Security Force (for short, ‘CISF’) and challenges the various orders arising out of the disciplinary action initiated against him, culminating in his dismissal from service.

3. The petitioner was posted at the Plant Company, CISF Unit, NALCO, Damanjodi, Odisha and was assigned duties for the night shift on 25th September, 2017 from 2100 hours to 0500 hours on 26th September, 2017 at EIL Store backside. At the time he had reported for duty to the Control-Room for briefing, he was found to be drunk. He was medically examined at the NALCO Hospital, Damanjodi where the doctor observed “Alcoholic Smell, drunken gait, pupil dilated and Speech Slurred”. Consequently, disciplinary action was initiated against him vide Memorandum dated 20th October, 2017. The two Articles of Charge framed against the petitioner were as follows: -

ARTICLE OF CHARGE-I

"That, No. 092550403 Constable/GD Raju Kolla of 'Plant' Company, CISF Unit NALCO Damanjodi who was detailed for night shift duty on 25.09.2017 from 2100 Hrs. on 25.09.2017 to 0500 Hrs on 26.09.2017 at EIL store back side was found in drunken condition when he reported for briefing of night shift duty personnel. This act on the part of No. 092550403 Constable/GD Raju Kolla tantamounts to gross indiscipline, unbecoming of a member of Armed Force of the Union. Hence, the charge.

ARTICLE OF CHARGE-II

"That, No. 092550403 Constable/GD Raju Kolla of 'Plant' Company, CISF Unit NALCO Damanjodi has been awarded with 01 Major punishment U/R-36 & 06 Nos. of Petty Punishment under rule 38 of CISF Rules 2001 (Amended Rules 2003) in the past by the disciplinary authorities for his various misconduct and indisciplined acts. Yet No. 092550403 Constable/GD Raju Kolla failed to improve his conduct and remained incorrigible. Hence, the Charge.”

4. After the Inquiry, the Disciplinary Authority/Senior Commandant, CISF vide order dated 13th March, 2018 directed removal of the petitioner from service. The petitioner preferred an appeal under Rule 46(1)(ii) of the CISF Rules, 2001 (as amended in 2003), which was dismissed by the Deputy Inspector General vide order dated 30th August, 2018. The petitioner preferred a revision petition, once again under Rule 54(1)(a) of the CISF Rules, but the same was rejected by the Inspector General vide the order dated 1st March, 2019. The mercy petition was also dismissed by the Director General vide order dated 20th August, 2019. Hence the present petition.

5. Sh. Abhishek Kaushik, learned counsel appearing on behalf of the petitioner contended that the Disciplinary Authority had not proceeded in the right manner as the defence of the petitioner had been completely overlooked as he had explained that he was suffering from spinal problem and was prescribed heavy medication. The learned counsel also submitted that the doctor who had recorded the observation in the OPD was never offered for cross-examination. The learned counsel further submitted that if this observation of the doctor was to be accepted, then the charge had been framed erroneously as it should have then read that he was found smelling of alcohol and not drunk. According to learned counsel, drunkenness could have been established only with the blood test. Since there was no blood sample drawn, there was no conclusive evidence that the petitioner was drunk.

6. The argument of the learned counsel for the petitioner cannot be accepted in the light of the fact that eight witnesses had been examined during the inquiry proceedings and their testimonies supported the observation of the doctor that the petitioner was not only smelling of alcohol but had a drunken gait. The petitioner did not produce any evidence to prove his defence that he was under any kind of medication and that too whi