Patna High Court: Petitioner invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution seeking a certiorari setting aside an order dated 30-11-2021 passed by Respondent 2, the Divisional Commissioner Koshi Division, Saharsa whereby Respondent 2 had in a very casual, mechanical, illegal, and torturous manner rejected the service appeal of petitioner filed against the order of punishment dated 15-01-2020 passed by the District Magistrate, Supaul on 15-01-2020 without application of its own judicial mind which had no legal leg to stand upon.
Bibek Chaudhari, J., held that the disciplinary authority failed to consider the observation of the Supreme Court in Bachubhai Hassanalli Karyani v. State of Maharashtra, (1971) 3 SCC 930 (‘Bachubhai Hassanalli Karyani Case’) and based his order of punishment on breath analyzer report which could not be said to be a conclusive proof of consumption of alcohol.
Background
Petitioner, wife of the deceased submitted that when her husband was posted in the office of S.D.O. at Nirmali P.S., he was apprehended by the S.H.O. of the said Police Station on the allegation that he contravened Sections 37(a) and 37(c) of the Bihar Prohibition and Excise Act, 2016 (‘the 2016 Act’). After his arrest he was in judicial custody for a few days and as per the relevant provision of the Service Code, petitioner’s husband was suspended from service as he was in incarceration for more than 48 hours. Subsequently, he was released on bail and on his prayer the order of suspension was revoked, and he was directed to join his service. However, on the same ground that he consumed alcohol in contravention of the above-mentioned provision of the 2016 Act, a departmental proceeding was initiated. Simultaneously, a criminal case was also initiated, which was still pending.
Petitioner’s husband had challenged the order dated 11-01-2020 of the disciplinary authority, i.e., District Magistrate, Supaul, which was communicated on 15-01-2020, whereby the disciplinary authority had dismissed him from his service on the ground that he took a specific defence that at the relevant point of time he was suffering from cold and cough and he took cough syrup containing certain percentage of alcohol and on suspicion he was arrested. It was submitted that no scientific examination was done by the Medical Officer or any other authority to conclusively ascertain as to whether petitioner’s husband consumed alcohol or not and his blood and urine samples were not taken for examination of percentage of alcohol in his blood or urine. Therefore, based on breath analyzer report a person could not suffer major penalty like dismissal from service.
Analysis, Law, and Decision
The Court held that that breath analyzer report was not conclusive proof of consuming liquor by a person. The Court relied on Bachubhai Hassanalli Karyani Case, wherein the Supreme Court held that no conclusion regarding consumption of alcohol by a person could be made on the facts that the person’s breath was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. Consumption of alcohol could only be ascertained by way of blood and urine test by a person suspected to have consumed alcohol.
The Court noted that in the present case, there was also no allegation that at the time of arrest, the gait of petitioner’s husband was unsteady, he was speaking incoherently or that his pupils were dilated. The Court stated that it had no other alternative but to hold that the disciplinary authority failed to consider the observation of the Supreme Court in Bachubhai Hassanalli Karyani Case (supra) and based his order of punishment on breath analyzer report which could not be said to be a conclusive report of consumption of alcohol.
Thus, the Court did not uphold the impugned order dated 11-01-2020 passed by the District Magistrate, Supaul against petitioner’s husband and order passed in appeal by the Commissioner based on the order dated 11-01-2020. Accordingly, both the orders were quashed and set aside.
[Manju Devi v. State of Bihar, 2024 SCC OnLine Pat 2324, decided on 19-06-2024]
Advocates who appeared in this case :
For the Petitioner: Pramod Mishra, Advocate
For the Respondents: M.N.H. Khan (SC-1); Md. Fazle Karim, AC to SC-1
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