Patna High Court
Manoj Kumar Pandey vs The State Of Bihar on 10 January, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No 10484 of 2023
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Manoj Kumar Pandey Son of Satyadev Pandey, Resident of Mohalla- Ambika
Nagar, Ward No. 12, Police Station- Banjaria, District- East Champaran.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Principal Secretary, Revenue and land
Reforms Department, Government of Bihar, Patna.
2. The Commissioner, Tirhut Division, Muzaffarpur.
3. The Collector, East Champaran at Motihari.
4. The Additional Collector, East Champaran at Motihari.
5. The Sub Divisional Officer, Sadar, Motihari, East Champaran.
6. The Sub Divisional Officer, Raxaul, East Champaran.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr Karandeep Kumar, Advocate
For the Respondent/s : Mr Md Khurshid Alam, AAG XII
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CORAM: HONOURABLE MR JUSTICE ARVIND SINGH CHANDEL
ORAL JUDGMENT
Date : 10-01-2025
This petition has been preferred by the petitioner
seeking the following reliefs:
(i) For quashing the order dated
18.04.2023
passed in Service Appeal No 294 of
2019 by the Court of learned Commissioner,
Tirhut Division, Muzaffarpur, whereby and
where under the appeal preferred by the
petitioner against the order of dismissal from
service as contained in memo No 1232
(establishment) dated 26.10.2019 issued by the
Collector, East Champaran at Motihari has been
rejected.
(ii) For quashing the order as
contained in memo No 1332/Estb dated
Patna High Court CWJC No.10484 of 2023 dt.10-01-2025
26.10.2019 issued under the signature of
Collector, East Champaran at Motihari, whereby
and where under the petitioner has been
dismissed from the service.
(iii) For directing the respondent
authorities to reinstate the petitioner on the post
of Revenue Clerk, Circle, Sadar, Motihari, East
Champaran at Motihari and grant all
consequential benefits to the petitioner.
iv. And for any other relief(s) for
which the petitioner is found to be entitled in
view of the facts and circumstances of the case."
2 Facts of the case are that the petitioner, while working
as a Revenue Cleark, East Champaran was apprehended on
08.06.2018 in connection with Excise Case No 267 of 2018 dated
09.06.2018 instituted for the offence punishable under Section 37
(a) and (b) of the Bihar Prohibition and Excise Act, 2016. The
petitioner and one Sanjay Kumar were allegedly found consuming
the prohibited liquor. The petitioner was remanded in judicial
custody on 09.06.2018 and subsequently was granted bail by this
Court. Subsequently, departmental enquiry has been initiated
against him. Charge memo was given to him. In his reply, the
petitioner denied the charges levelled against him. The enquiry
officer submitted his enquiry report and he found the charges
proved which have been levelled against the petitioner. On the
basis of the said enquiry report, the District Magistrate, East
Champaran, Motihari vide his order dated 26.10.2019 dismissed
Patna High Court CWJC No.10484 of 2023 dt.10-01-2025
the petitioner from the services. A departmental appeal was
preferred by the petitioner being Service Appeal Case No 294 of
2019 before the Court of Commissioner, Tirhut Division,
Muzaffarpur. The appeal was also rejected vide order dated
18.04.2023. Hence, this petition has been preferred by the
petitioner.
3 Learned counsel for the petitioner submits that the
enquiry report of the enquiry officer, on the basis of which the
order of dismissal has been passed by the Collector, is
unsustainable as being violative of principles of natural justice.
He submits that though charge memo has been issued to the
petitioner but neither list of witnesses were prepared nor submitted
nor any witness has been examined by the enquiry officer during
the course of enquiry. Even after that, the enquiry officer, only on
the basis of breath analyzer test report, arrived on the conclusion
that at the time of the incident, the petitioner was found in
intoxicated condition. He further submits that apart from the
breath analyzer test, no any other medical test or blood/urine test
have been conducted. Referring to the judgment dated 09.05.2024
passed by a coordinate Bench of this Court in CWJC No 14846 of
2021 (Dharmraj Singh @ Dhamraj Singh -Versus- The State of
Bihar & Others), it is submitted by the learned counsel that in the
Patna High Court CWJC No.10484 of 2023 dt.10-01-2025
said case, a coordinate Bench of this Court categorically held that
breath analyzer report is not a conclusive proof of consumption of
alcohol. Therefore, only on the basis of breath analyzer report,
which has also not been duly proved during the departmental
enquiry, the conclusion made by the enquiry officer, which has
been affirmed by the appellate authority, is not sustainable.
4 Learned counsel for the respondent-State opposes the
argument raised by the learned counsel for the petitioner and
submits that the petitioner was given ample opportunity of hearing.
From the breath analyzer report, it is well established that at the
time of alleged incident, the petitioner was found in intoxicated
condition. Therefore, the enquiry officer rightly arrived on the
conclusion that charges levelled against the petitioner found
proved.
5 Considering the rival submissions made by both the
counsel and considering the material placed on record, this Court
finds that thought the charge memo was issued to the petitioner but
neither list of witnesses were prepared nor any witness has been
examined by the enquiry officer during the course of enquiry
proceeding. The enquiry officer relied on the breath analyzer
report. There is nothing on record which shows that who was the
person who brought on record the said breath analyzer report.
Patna High Court CWJC No.10484 of 2023 dt.10-01-2025
There is also nothing on record which shows that who and in what
manner, the said breath analyzer report has been proved by the
presenting officer during the course of enquiry.
6 Referring to the judgment passed by the Supreme
Court in the case of Bachubhai Hassanalli Karyani -Versus-
State of Maharashtra, (1971) 3 SCC 930, a coordinate Bench of
this Court in the case of Dharmraj Singh (supra) observed and
held at paragraphs 13, 14 and 15 as under:
"13. It is needless to say that breath
analyzer report is not a conclusive proof of
consuming the liquor by a person in Bachubhai
Hassanalli Karyani vs State of Maharashtra
reported in (1971) 3 SCC 930. The Hon'ble
Supreme Court held that no conclusion with
regard to consumption of alcohol by a person
can be made on the facts that the appellants
breath was smelling of alcohol, that his gait was
unsteady, that his speech was incoherent and
that his pupils were dilated. Comsumption of
alcohol can only be ascertained by way of blood
and urine test of a person, suspected to have
consumed alcoohol.
14. The Hon'ble Supreme Court found
that the blood and urine examination of the
appellant was not done and finally held that the
mere smelling of alcohol is not enough to hold
that the petitioner consumed alcohol on the date
of his apprehension, i e, on 16th of January,
2020.
15. Thus, this Court holds that breath
analyzer report is not a conclusive proof of
consumption of alcohol by the petitioner."
Patna High Court CWJC No.10484 of 2023 dt.10-01-2025
7 Thus, it is quite clear that the breath analyzer report is
not a conclusive proof of consumption of alcohol by the petitioner.
8 Dealing with the issue, the Supreme Court, in the case
of State of Uttar Pradesh & Others -Versus- Saroj Kumar Sinha,
(2010) 2 SCC 772 observed and held as under:
"28. An inquiry officer acting in a
quasi-judicial authority is in the position of an
independent adjudicator. He is not supposed to
be a representative of the
department/disciplinary authority/Government.
His function is to examine the evidence
presented by the Department, even in the
absence of the delinquent official to see as to
whether the unrebutted evidence is sufficient to
hold that the charges are proved. In the present
case, the aforesaid procedure has not been
observed. Since no oral evidence has been
examined, the documents have not been proved,
and could not have been taken into
consideration to conclude that the charges have
been proved against the respondents."
9 A close scrutiny of the facts of this case in hand
clearly shows that in this case though charge memo has been given
to the petitioner but there was neither list of witnesses submitted
nor any witness was examined during the course of enquiry. The
charges levelled against the petitioner has been proved only on the
basis of breath analyzer report which is not a conclusive proof of
consumption of alcohol, as observed by a coordinate Bench of this
Court in the case of Dharmraj Singh (supra). Apart from that,
there is also no material on record which shows that who was the
Patna High Court CWJC No.10484 of 2023 dt.10-01-2025
person who produced or proved the breath analyzer report during
the course of enquiry. Thus, the conclusion, as arrived by the
enquiry officer, is baseless and unsustainable in the eyes of law.
10 Since, there is no material on record to sustain the
allegation against the petitioner, the finding of the enquiry officer,
which has been accepted by the disciplinary authority and affirmed
by the appellate authority, are perverse. They cannot be made the
basis for dismissal of the petitioner. Therefore, the order of
dismissal dated 26.10.2019 passed by the Collector, East
Champaran at Motihari and order of the appellate authority dated
18.04.2023 passed by the Divisional Commissioner, Tirhut
Division, Muzaffarpur are hereby quashed.
11 The writ petition is allowed.
12 As a result of quashing of both the orders, the
respondents are directed to reinstate the petitioner forthwith with
all consequential benefits.
(Arvind Singh Chandel, J)
M.E.H./-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 17.01.2025
Transmission Date NA
