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PETITIONER: HARDWARI LAL

       Vs.

RESPONDENT: STATE OF U.P.  & ORS.

DATE OF JUDGMENT:       27/10/1999

BENCH: S.R.Babu, S.Saghir Ahmad

JUDGMENT:

RAJENDRA BABU, J.  :

     Leave granted.

     The appellant was a constable in the police department in  the  State  of Uttar Pradesh.  On a charge that  on  the night  between  16/17.1.1991  being under the  influence  of liquor  hurled  abuses in the police station  at  Constable, Prakash Chandra Pandey, a departmental enquiry was initiated against  the  appellant.  On receipt of enquiry  report  the disciplinary  authority  passed  an   order  of   dismissal. Challenge  to that order by the appellant before the  Public Services   Tribunal  [hereinafter  referred   to   as   the Tribunal] failed.  The appellant further carried the matter to the High Court by way of writ petition.  The ground based on   non-supply   of  copies  of  certain   documents   like preliminary enquiry report, the statement of the complainant made  to  Inspector  Virender  Singh  was  rejected  by  the Tribunal   being  of  the  view   that  the  appellant   had participated in the preliminary enquiry having inspected the entire record and documents and had not asked for any copies of  the record.  This finding recorded by the Tribunal stood affirmed  by  the  High Court.   Similarly,  the  contention regarding  non-examination  of Virender Singh, who  was  the complainant  in the case, and witness, Jagdish Ram, who  was supposed  to have witnessed the incident, was also  rejected by  the  Tribunal  on  the basis  that  the  examination  of Virender  Singh  was only formal to prove the  report  dated 17.7.1991 and no prejudice has been caused to the defence of the  appellant.   According  to the  Tribunal,  evidence  of Jagdish  Ram  also was not important because he  had  merely accompanied him for the purpose of medical examination.  The High  Court  affirmed this finding and ultimately  concluded that  apart  from the evidence of these two witnesses  there was sufficient material on record to establish the fact that the  incident  took  place and thus there was no  ground  to interfere  with the order made by the Tribunal and dismissed the writ petition.  Hence this appeal.

     Before  us  the  sole  ground   urged  is  as  to  the non-observance  of the principles of natural justice in  not examining the complainant, Shri Virender Singh, and witness, Jagdish  Ram.   The Tribunal as well as the High Court  have

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brushed  aside the grievance made by the appellant that  the non-examination  of  those  two persons has  prejudiced  his case.   Examination  of  these   two  witnesses  would  have revealed  as to whether the complaint made by Virender Singh was  correct  or not and to establish that he was  the  best person  to speak to its veracity.  So also, Jagdish Ram, who had  accompanied  the appellant to the hospital for  medical examination,  would have been an important witness to  prove the  state  or  the condition of the appellant.  We  do  not think  the  Tribunal  and the High Court were  justified  in thinking that non-examination of these two persons could not be  material.   In these circumstances, we are of  the  view that  the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.

     However,  Shri  Goel,  the   learned  Addl.   Advocate General,  State  of Uttar Pradesh, has submitted that  there was  other  material  which was sufficient to  come  to  the conclusion  one way or the other and he has taken us through the same.  But while appreciating the evidence on record the impact  of  the  testimony  of  the  complainant  cannot  be visualised.   Similarly,  the evidence of Jagdish Ram  would also  bear  upon  the state of inebriation, if any,  of  the appellant .

     In  the circumstances, we are satisfied that there was no  proper enquiry held by the authorities and on this short ground  we  quash the order of dismissal passed against  the appellant  by setting aside the order made by the High Court affirming  the  order  of the Tribunal and direct  that  the appellant be reinstated in service.  Considering the fact of long  lapse  of  time  before  the  date  of  dismissal  and reinstatement,  and no blame can be put only on the door  of the  respondents,  we think it appropriate to award  50  per cent  of the back salary being payable to the appellant.  We thus  allow  the  appeal filed by the  appellant.   However, there shall be no order as to costs.