In a Letters Patent Appeal filed before the Patna High Court by the State to assail an order dated 09-05-2024 by a Single Judge, whereby the writ application was allowed in the respondent’s favour by setting aside an order of his dismissal from service dated 02-07-2020, a Division Bench of the Chief Justice Meenakshi Madan Rai and Justice Soni Shrivastava affirmed the impugned order, finding no illegality in the same.
The respondent, after rendering satisfactory service for 32 years as a constable of police under the Home Department, Government of Bihar, Patna, was promoted to the post of Assistant Sub-Inspector in 2020. While he was posted at the Motihari police line, a raid was conducted regarding the consumption of liquor and the respondent was arrested and an FIR was registered against him under Section 37(b) of the Bihar Prohibition and Excise (Amendment) Act, 2018. Subsequently, departmental proceedings were also initiated against him.
The respondent’s contention was that he was arrested on the pretext of the smell of alcohol coming from his mouth and only the breath analyzer examination was conducted. It was argued that neither the amount of alcohol was shown in the report nor was he subjected to any blood or urine test. The respondent mentioned in the departmental proceeding that since he was suffering from tuberculosis, he used a cough syrup and other medicines, but the dismissal order was passed without considering the same.
The Court noted that the charge made against the respondent was based upon the doctor’s report confirming the fact that he had consumed alcohol, but the said doctor had not been testified. It was stated that the inquiry report also did not discuss the said report which meant that no reliance could have been placed on the report. It was also noted that no witness had seen the respondent drinking and that the witness evidence was merely based on conjectures and surmises.
The Court referred to the Supreme Court’s decision in Deputy General Manager & Ors. v. Ajai Kumar Srivastava (2021) 2 SCC 612 and stated that the breath analyzer report had not been proved in absence of the doctor’s examination and that the conclusion of alcohol consumption only by smell was a flawed conclusion. Hence, the Court held that the nature of evidence which had led to finding of guilt was based merely on conjectures and surmises, amounting to a case of no evidence, which meant that any finding on the same would be patently perverse requiring interference.
The Court concurred with the Single Judge’s view that the violation of natural justice occurred on account of non-consideration of the medical documents filed by the respondent at the time of departmental inquiry and held that the inquiry report was arbitrary and improper. The Court stated that even though a breath analyzer report is admissible in evidence, its probative and conclusive value stands on a different footing.
Considering the illegalities committed in the departmental proceeding as well as the fact that the order of the disciplinary authority was perverse as there was no regard to the respondent’s medical condition, the Court opined that the disciplinary action would not be legally sustainable. Hence, the Court stated that the decisions of both the disciplinary authority as well as the appellate authority also could not sustain in the eyes of law. The Court held that there was no illegality in the impugned order and stated that the same did not warrant interference. Thus, the petition was dismissed.
