JUDGMENT
J.S. Khehar, J.
1. The petitioner was employed as a constable in the Police Department, Haryana. A charge-sheet dated 16.2.1985 was issued to him alleging, that he was found under the influence of alcohol on 14.12.1984 when checking was conducted at the Police Post, Dundahera in District Gurgaon, at 8.30 P.M., by the District Inspector, Gurgaon. The charge-sheet also alleges, that on medical examination, it was detected that the petitioner was smelling of alcohol. The petitioner submitted his response thereto which has been placed on the record of the instant writ petition as Annexure P-2. The enquiry officer submitted his report dated 26.3.1985, wherein it was concluded that it had been established that the petitioner had taken liquor on 14.12.1984 at 8.30 P.M. at the time when inspection was conducted by the District Inspector, Gurgaon.
2. The Superintendent of Police, Gurgaon, issued a show cause notice to the petitioner dated 9.4.1985, proposing the punishment of stoppage of five annual grade increments with cumulative effect. The reply thereto filed by the petitioner has been appended to the instant writ petition as Annexure P-4. Where after, the Superintendent of Police, Gurgaon, by an order dated 4.7.1985, imposed on the petitioner the punishment of stoppage of three annual grade increments with cumulative effect. Dissatisfied with the punishment order dated 4.7.1985, the petitioner preferred an appeal, raising a large number of pleas, two of which have been highlighted during the course of arguments before this court, firstly, that at the time when inspection was conducted, the petitioner was not on duty. On the basis of the aforesaid factual assertion, it is the contention of the learned counsel for the petitioner that drinking alcohol while off duty, cannot be considered as a mis-conduct on which a punishment can be inflicted on an employee. Secondly, learned counsel for the petitioner has vehemently relied upon the statement of Dr. Jai Bhagwan, who was produced by the petitioner before the enquiry officer as DW2. The aforesaid witness while deposing before the enquiry officer had stated that one of the medicines prescribed by him on the OPD slip produced by the petitioner, had a slight alcoholic smell. However, the aforesaid drug had no intoxicating effect. It is the vehement contention of the learned counsel for the petitioner that the statement of DW-2 Dr. Jai Bhagwan was not considered by the punishing authority while inflicting the punishment of stoppage of three annual grade increments with cumulative effect, on 4.7.1985. The appeal preferred by the petitioner was declined by the Deputy Inspector General of Police, Gurgaon Range, Gurgaon, on 26.11.1985. While disposing of the aforesaid appeal, it was acknowledged by the Appellate Authority, that the checking was conducted at the time when the petitioner was not on duty. However, according to the Appellate Authority, the aforesaid fact was irrelevant to the issue. The Appellate Authority, however, did not express any opinion in respect of the plea raised by the petitioner on the basis of the statement of Dr. Jai Bhagwan DW-2..
3. Dissatisfied with the appellate order dated 26.11.1985 passed by the Deputy Inspector General of Police, Gurgaon Range, Gurgaon, the petitioner preferred a revision petition, raising the same pleas. The revision petition filed by the petitioner was dismissed by the Director General of Police, Haryana, by his order dated 12.6.1986.
4. Through the instant writ petition,the petitioner has impugned the punishment order dated 4.7.1985, the appellate order dated 26.11.1985 and the revisional order dated 12.6.1986.During the course of arguments, learned counsel for the petitioner has advanced only two pleas, already noticed above.
5. In so far as the first contention of the learned counsel for the petitioner is concerned, namely, that the petitioner was found to be in an intoxicated condition while off duty, it is the vehement contention of the learned counsel for the petitioner that consumption of alcohol by itself, does not constitute a mis-conduct unless in addition thereto, it is also alleged and proved that the employee was guilty of misbehaviour and mis-conduct on the basis of his intoxication on account of consumption of alcohol. In order to support his claim based on the first contention, learned counsel for the petitioner has relied on a judgment rendered by a Single Bench of this Court in Rattan Lal v. The State of Haryana and Ors., 1983(2) Services Law Reporter 243. Pointed attention of this court has been invited to the following observations made therein:-
“One of the primary contentions raised by the learned counsel for the petitioner is that even if the above-noted facts or the finding recorded against the petitioner that at the opportune time he was smelling alcohol is to be accepted, the same does not amount to any misconduct as he was neither on duty at that moment nor was misbehaving in any other manner. The learned counsel maintains that even as per the medical report, the petitioner but for alcoholic smell was found to be normal in all respects. These submissions of the learned counsel are met by Mr. B.L. Bishnoi, the learned Additional Advocate General, appearing for the respondent-authorities on the plea that a police officer is supposed to be on 24 hours’ duty and, thus, even if the petitioner was not performing the duty of a sentry at the Malkhana he is to be presumed to be on duty. I am afraid I cannot possibly accept this submission of the learned Additional Advocate-General. If that be so, then all members of the Police Force, high or low, have to be taken on duty during the course of their entire service right from the day of their enrollment and if consumption of alcohol has again to be taken as a misconduct then probably most of them can any time be held guilty of the same, to everybody’s knowledge, the factual position is entirely different. Otherwise also I am of the considered view that mere consumption of alcohol even if this has to be taken as an established fact in the case in hand-does not amount to any misconduct known to the service rules. Merely because an employee is found under the influence of liquor without anything more does not, to my mind, render the employee to any such disciplinary action. The learned Additional Advocate-General is not in a position to bring to my notice any precedent or principle on the basis of which it can be said that mere consumption of liquor by any employee, particularly when he is not on duty, amounts to misconduct or misbehavior.”
Learned counsel for the petitioner has also invited the attention of this court to the judgment rendered by a Single Bench of this Court in Sukhdev Singh v. The State of Punjab and Ors., 1983(2) Service Law Reporter 645, wherein the conclusions drawn in Rattan Lal’s case (supra) which have been extracted hereinabove, were reiterated. While dealing with the first contention of the learned counsel for the petitioner, it would be essential to notice the following observations made by the Appellate Authority while disposing of the appeal preferred by the petitioner:-
“The next plea that at the time of checking, he was not on any specific duty and in this case, it does not amount to any misconduct so as to call for departmental action. His contention that he was not on duty at the time of checking may be correct, yet still it was in violation of Rule 18.5(6) of the Police Rules.”
During the course of hearing of the instant case, learned counsel for the respondents was pointedly required to inform this Court whether or not the petitioner was off duty at the time when inspection was conducted at 8.30 P.M. on 14.12.1984. In furtherance of the aforesaid desire of this Court, the respondents have produced original service record which only depicts that the petitioner was on duty on the relevant date, namely, on 14.12.1984. No material has, however, been produced before this Court to show whether or not the petitioner was on duty or off duty at 8.30 P.M.. Even the statements of witnesses produced by the respondents before the enquiry officer to establish the charge levelled against the petitioner, do not lead to any clear finding that the petitioner was on duty at 8.30 P.M. on 14.12.1984. In view of the above, it is natural to accept the opinion expressed by the Appellate Authority to the effect that the petitioner was not on duty at the time when inspection was conducted by the District Inspector, Gurgaon, wherein, he found the petitioner smelling of alcohol. Accordingly, the controversy will have to be adjudicated upon by accepting that the petitioner was not on duty at the time when checking was conducted. In view of the fact that the charge-sheet dated 16.2.1985 does not even allege that the petitioner was mis-conducting himself in any manner whatsoever, on account of his alleged intoxication, it will be natural to conclude that besides the allegation of having consumed alcohol, there was no other allegation of mis-conduct against the petitioner. Thus viewed, the judgments rendered by this Court in Rattan Lal’s case (supra) and Sukhdev Singh’s case (supra) squarely apply to the controversy in hand since the charges levelled against the petitioner do not establish that he was in an aberration state during the duty hours, and further on account of the fact that no other allegation of mis-conduct, connected with the state of intoxication, was levelled against the petitioner.
6. In so far as the second contention is concerned, namely, the non-consideration of the statement by any of the authorities, made by DW-2 Dr. Jai Bhagwan, who had been produced by the petitioner in support of his claim that the drug prescribed for him by DW-2, although, had a smell akin to that of a alcohol, it was, as a matter of fact, non-intoxicating. The instant contention was pressed by the petitioner before the punishing authority, before the appellate authority as well as before the revisional authority. However, none of the aforesaid authorities dealt with the instant plea. The instant plea has again been raised at the hands of the petitioner in paragraph 11 (v) of the writ petition. The response in the written statement is, that by not relying on the statement of Dr. Jai Bhagwan DW-2 a government doctor of the Civil Hospital, Gurgaon, the respondents had committed no legal infirmity. In view of the factual position narrated above, it is apparent that the petitioner must succeed on the second contention as well. The pointed plea raised by the petitioner was that he was not under the influence of alcohol. His contention, clearly and categorically throughout, has been that he was prescribed certain drugs by Dr. Jai Bhagwan, a government doctor posted at the Civil Hospital, Gurgaon. It was also the vehement contention of the petitioner, that although, the prescribed drug had the smell of alcohol, it had no intoxicating effect. The statement of Dr. Jai Bhagwan to the aforesaid effect remained unrebutted and uncontested as he was not subjected to cross-examination on the aforesaid issue. Since a government doctor had appeared to support the claim of the petitioner before the enquiry officer, it was not justified for the authorities to brush aside the aforesaid claim without recording a positive finding in respect thereto. As noticed hereinabove, since the statement of Dr. Jai Bhagwan DW-2 had remained unrebutted, the same could have constituted an effected reply to the charges levelled against him, on account of the non-rebuttal thereof, the petitioner should have been exonerated. Since the charge of being under the influence of alcohol was based on only one consideration, namely, that the petitioner was smelling of alcohol, had the statement of Dr. Jai Bhagwan DW-2 been considered, no such conclusion could have been drawn.
7. In view of the above, the instant writ petition is allowed. The punishment order dated 4.7.1985 is set aside. Accordingly, the appellate order as well as the revisional order dated 26.11.1985 and 12.6.1986 respectively are also set aside. The petitioner shall be entitled to all consequential benefits flowing out of the setting aside of the orders referred to above. The monetary benefits due to the petitioner shall be calculated within two months from the date of submission of a certified copy of this order by the petitioner to the concerned quarters, and paid to him within a further period of one month.
8. Allowed in the aforesaid terms.