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Patna High Court

Abhay Kumar SinghversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The dismissal, appellate order and memorial order are set aside as they were based on a non‑conclusive breath‑analyzer report and were passed without observing procedural fairness, and the petitioner is to be reinstated.

Summary

Abhay Kumar Singh, a constable in the Bihar Rail Police, was arrested on 08.01.2022 on allegations of intoxication based solely on a breath‑analyzer report, without any blood or urine test. He was suspended, later reinstated, and subsequently subjected to departmental proceedings that culminated in his dismissal on 06.05.2022. The petitioner contended that the disciplinary and appellate authorities acted arbitrarily, violated the Bihar CCA Rules, 2005 and the principles of natural justice by not allowing cross‑examination or considering medical evidence. The State argued that the procedures were lawful and that breath‑analyzer evidence was conclusive. The High Court, relying on its own precedents and Supreme Court authority, held that a breath‑analyzer report alone is not conclusive proof of alcohol consumption and that the dismissal was manifestly arbitrary. Consequently, the Court set aside the dismissal, the appellate order and the memorial order, and directed the petitioner’s reinstatement with consequential benefits.

Issues considered

  • Whether a breath‑analyzer report alone can constitute conclusive proof of intoxication for disciplinary action.
  • Whether the departmental proceedings complied with the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005, particularly Rules 17(3) and 17(14).
  • Whether the dismissal of the petitioner violated the principles of natural justice.
  • Whether the appellate and memorial orders were legally valid.

Legislation cited

Subjects

  • departmental dismissal
  • natural justice
  • breath analyzer evidence
  • Bihar CCA Rules
  • reinstatement
  • service law
  • procedural fairness

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5460 of 2025
     ======================================================
     Abhay Kumar Singh Son of Late Upendra Prasad Singh, resident of Village-
     Fatehpur, P.S.-Raghopur, District-Vaishali.

                                                                   ... ... Petitioner/s

                                        Versus

1.   The State of Bihar through the Additional Chief Secretary, Home
     Department, Government of Bihar, Patna.
2.   The Director General of Police, Bihar, Patna.
3.   The Deputy Inspector General of Police (Rail), Bihar, Patna.
4.   The Superintendent of Police (Rail), Patna.
5.   The In-charge Parichari Pravar, Rail Patna, District-Patna.

                                                               ... ... Respondent/s

     ======================================================
     Appearance :
     For the Petitioner/s   :       Mr. Akshansh Ankit, Advocate
                                    Mr. Manoranjan Kumar, Advocate
     For the State          :       Mr. Piyush Kumar Pandey (AC to SC-11)
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN

                            ORAL JUDGMENT

      Date : 02-04-2026

                       Heard learned counsel for the petitioner and learned

      counsel for the State.

                       2. The present writ petition has been filed for

      issuance of an appropriate writ(s)/order(s)/direction(s) for grant

      of the following relief/s:-

                                “I. To quash the order as contained in
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                                 Memo No. 689 dated 23.11.2022 (Annexure
                                 P/11) issued by the Respondent No. 2
                                 whereby and whereunder the memorial
                                 preferred by the Petitioner against the
                                 appellate order has been dismissed.
                                 II. To quash the Appellate order as
                                 contained         in   Memo   No.   529    dated
                                 19.07.2022 (Annexure P/9) issued by the
                                 Respondent No. 3 whereby and whereunder
                                 the appeal preferred by the Petitioner
                                 against the order of punishment has been
                                 rejected, in a most mechanical and arbitrary
                                 manner without following the procedure
                                 prescribed under the relevant Rules or
                                 complying with the principles of natural
                                 justice.
                                 III. To quash the order of punishment as
                                 contained         in   Memo   No.   1101   dated
                                 06.05.2022 (Annexure P/8) issued by the
                                 Respondent No. 4 whereby and whereunder
                                 the petitioner has been dismissed from
                                 service in a most mechanical and arbitrary
                                 manner without following the procedure
                                 prescribed under the relevant Rules or
                                 complying with the principles of natural
                                 justice.
                                 IV. To direct the Respondents concerned to
                                 give a posting commensurate to the status of
                                 the Petitioner with all consequential benefits
                                 including continuity in service, arrears of
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                                 salary etc.
                                 V. To pass any other order/orders in shape
                                 of a consequential relief to which the
                                 Petitioner may be found to be legally
                                 entitled to in the facts and circumstances of
                                 the instant case at hand.”


                         3. Learned counsel for the petitioner submits that

         the petitioner was initially appointed on the post of Constable on

         28.11.1994, against a sanctioned vacant post following the due

         recruitment process. Counsel submits that while the petitioner

         was posted as Constable at Rail Police Kendra, Patna, he was

         falsely implicated in a criminal case at the behest of higher

         officials. Counsel submits that the petitioner was arrested on

         08.01.2022 near Patna Junction and accordingly, FIR has been

         lodged against him bearing Kotwali P.S. Case No. 10 of 2022

         dated 08.01.2022 under section37(b)(c) of the Bihar Prohibition

         and Excise Act, 2016. Counsel submits that though, the

         petitioner was arrested on the allegation that he was in the state

         of intoxication consuming liquor, but this fact was not correct

         and on the basis of breath analyzer report without collecting

         blood sample and urine sample, the petitioner was arrested and

         subsequently, suspended vide Rail District Order no. 43 of 2022

         dated 15.01.2022. Counsel submits that thereafter, his
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         suspension was revoked vide Memo No. 659 dated 09.03.2022.

         He further submits that no preliminary enquiry was undertaken

         and direction for initiation of the departmental proceeding has

         been made. In the departmental proceeding bearing Disciplinary

         Proceeding No. 02 of 2022, charge memo was issued to the

         petitioner on 31.01.2022, alleging that he was found in the state

         of intoxication. Thereafter, the Enquiry Officer was appointed

         and the petitioner was directed to file his reply, which he has

         submitted on 11.02.2022. The petitioner participated in the

         enquiry proceeding and oral evidence of the witness taken place,

         but petitioner was not granted any opportunity to cross examine

         the three witnesses. Counsel submits that the petitioner was

         found guilty by the Enquiry Officer, which is in gross violation

         of principles of natural justice. The Enquiry Officer submitted

         his enquiry report and the matter was referred to the

         Disciplinary Authority who issued a second show cause to the

         petitioner vide Memo No. 650 dated 08.03.2022. The petitioner

         submitted his reply to the second show cause, but the

         Disciplinary Authority has imposed punishment upon the

         petitioner contained in Memo No. 1101 dated 06.05.2022

         (Annexure P/8), by which, the petitioner was dismissed from the

         service, which is in complete violation of principles of natural
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         justice. It was also directed that no payment be made to the

         petitioner apart from the payment already made during the

         service period.

                         4. Learned counsel for the petitioner further

         submits that at the time of passing of the order, the Disciplinary

         Authority has not recorded his reasonings and only on the basis

         of suspicion and report of the breath analyzer machine, the

         petitioner has been punished. He submits that the order passed

         by the Disciplinary Authority has been further challenged by the

         petitioner before the Appellate Authority, but the Appellate

         Authority has rejected the petitioner’s appeal in a cryptic

         manner, contained in Memo No. 529 dated 19.07.2022

         (Annexure P/9). The petitioner being aggrieved has preferred

         memorial, but his memorial was also rejected contained in

         Memo No. 689 dated 23.11.2022 (Annexure P/11), on the

         ground that the memorial is not maintainable. Counsel submits

         that thereafter, the petitioner moved before this Hon’ble Court in

         C.W.J.C. No. 568 of 2023, which was dismissed as withdrawn

         vide order dated 25.11.2024 with liberty to the petitioner to avail

         the appropriate remedy. Counsel submits that thereafter, the

         petitioner filed the present writ petition i.e. C.W.J.C. No. 5460

         of 2025 annexing all the materials. Counsel submits that order
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         of removal is a major punishment. He submits that in series of

         decisions, this Hon’ble Court has pleased to hold that the breath

         analyzer report is not a conclusive proof of consuming the

         liquor by a person and consumption of alcohol can only be

         ascertained by way of blood and urine test of a person,

         suspected to have consumed alcohol. He submits that in

         C.W.J.C. No. 14846 of 2021 (Dharmraj Singh @ Dhamraj

         Singh Vs. The State of Bihar & Ors.) decided on 09.05.2024,

         this Hon’ble Court has granted relief to the petitioner of the said

         writ petition and the writ petition was allowed. Counsel further

         submits that in L.P.A. No. 1095 of 2024 (The State of Bihar &

         Ors. Vs. Aswasthama Mahto @ Ashwathama Mahto), decided

         on 26.02.2026, the Hon’ble Division Bench of this Court has

         also pleased to hold that consumption of alcohol cannot be

         tested in breath analyzer test, particularly when, samples of

         urine test or blood test have not been collected, and in this way,

         the findings of the Bachubhai Hassanalli Karyani Vs. State of

         Maharashtra, reported in (1971) 3 SCC 930 has been relied

         upon.

                         5. Learned counsel for the State, on the other hand,

         submits that there is no illegality made in the departmental

         proceeding as the petitioner was found in the state of
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         intoxication and he was arrested in the state of intoxication by

         the police and accordingly, FIR has been lodged. Counsel

         submits that there is neither any procedural lapse nor any rule

         has been violated, rather, full opportunity of hearing has been

         provided to the petitioner. He submits that in L.P.A. No. 1199 of

         2024 (The State of Bihar & Ors. Vs. Rakesh Kumar) in which

         question of breath analyzer is a conclusive test for ascertaining

         that a person is in the state of consumption or not has been

         admitted before this Hon’ble Court in the above mentioned case.

         Therefore, he submits that till decision of the said L.P.A. No.

         1199 of 2024, the present writ petition may not be decided.

         Counsel further submits that each and every point has been well

         discussed and accordingly, the punishment of dismissal from

         service has been imposed upon the petitioner, which has been

         affirmed in the appellate order and there is no need of any

         interference in this matter.

                         6. After hearing the parties and upon perusal of the

         record, it transpires to this Court that the charge memo has been

         served upon the petitioner vide Annexure-P/3 in the light of

         regulation of 2017, prepared on the basis of Rule 17(3) of the

         Bihar Government Servants (Classification, Control & Appeal)

         Rules, 2005 (hereinafter referred to as ‘Bihar CCA Rules,
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         2005’). The allegation is there in the charge memo that the

         petitioner was found present near Patna junction in the state of

         intoxication. In the show cause, the defence has been taken by

         the petitioner that he has taken homeopathic medicine and in

         support of his claim, he has attached photocopy of prescription

         vide Annexure-P/2, by which, the petitioner has shown that he is

         in continuous treatment of taking homeopathic medicine. The

         Enquiry Officer in the enquiry found the charges proved against

         the petitioner. It has been alleged that the petitioner has not

         cross examined the persons who have adduced evidence against

         him. The Disciplinary Authority upon going through the enquiry

         report, has issued a second show cause. In accordance with

         second show cause, the petitioner has filed his detailed reply.

         The detailed reply has not been considered in the final order and

         he has been punished. This point has been raised by the

         petitioner in the second show cause as well as in the appeal

         before the authorities concerned that he is under treatment of

         Homeopathy Doctor and continuously used to take homeopathic

         medicine and on that very date also, he has submitted that he

         has taken the homeopathic medicine. But, the Kotwali police

         forcefully asked him to sit in the car and he was subsequently

         arrested.
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                         7. Upon perusal of the documents on record and the

         judgment passed by this Hon’ble Court in case of Dharmraj

         Singh @ Dhamraj Singh (supra), the relevant conclusive para

         12 to 17 reads as under:-

                                 “12. Having heard the learned counsels for
                                 the parties and on careful perusal of the
                                 materials on record, I am surprised to note
                                 that the petitioner was arrested on the
                                 allegation that he consumed alcohol on 16th
                                 of January, 2020 from Barrack No. 3 of
                                 Reserve      Police   Line,   Motihari.   It   is
                                 presumed that in Barrack No. 3, there were
                                 other personnel sleeping at that point of
                                 time. The arresting officer did not get the
                                 petitioner superficially examined by other
                                 inmates of Barrack No. 3 to ascertain as to
                                 whether smell of alcohol was coming from
                                 the mouth or not.
                                 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
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                                 his speech was incoherent and that his
                                 pupils were dilated. Consumption of alcohol
                                 can only be ascertained by way of blood and
                                 urine test of a person, suspected to have
                                 consumed alcohol.
                                 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.
                                 16. The disciplinary authority as well as the
                                 appellate authority failed to consider such
                                 aspect of the matter and the impugned order
                                 of dismissal of the petitioner suffers from
                                 manifest       arbitrariness.   The   order   of
                                 dismissal is an instance of violation of
                                 natural justice because of non-consideration
                                 of medical documents filed by the petitioner
                                 at the time of departmental inquiry.
                                 17. For the reasons stated above, this Court
                                 is of the view that the order of dismissal,
                                 passed by the Deputy Inspector of Police,
                                 Champaran Range, Bettiah, dated 2nd of
                                 July, 2020; the order of the Additional
                                 Director General of Police, Bihar, Patna,
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                                 dated 30th of September, 2020, affirming the
                                 order of dismissal; and order, dated 29th of
                                 June, 2021 passed by the Director General,
                                 Bihar, Patna, dismissing the memorial
                                 appeal of the petitioner, are quashed and set
                                 aside.”


                         7.1. Subsequently, the order passed by the Hon’ble

         Division Bench of this Court in L.P.A. No. 1095 of 2024

         decided on 26.02.2026, the relevant para 4 to 8 reads as under:-

                                 “4. The learned           Single    Judge while
                                 allowing the writ petition held that proper
                                 procedure        was   not   followed      by   the
                                 appellant-authorities, and only on basis of
                                 the fact that the petitioner’s breath smelled
                                 like alcohol, action was taken against the
                                 petitioner. The relevant paragraphs of the
                                 impugned judgment are reproduced as
                                 under:
                                         “8. Having heard the learned counsels
                                         for the parties and on careful perusal
                                         of the materials on record, I am
                                         surprised to note that the petitioner
                                         was arrested on the allegation that he
                                         consumed alcohol in the night of
                                         31.12.2019 and thereafter only on the
                                         basis of the report of doctor, and that
                                         too by Breath Analyzer, a case was
                                         registered     against     the   petitioner,
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                                         without examining his blood and
                                         urine.
                                         9. 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
                                         appellant’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 can only be
                                         ascertained by way of blood and urine
                                         test of a person suspected to have
                                         consumed alcohol.
                                         10. 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.
                                         11. Thus, this Court holds that Breath
                                         Analyzer report is not a conclusive
                                         proof of consumption of alcohol by the
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                                         petitioner.
                                         12. The disciplinary authority as well
                                         as the appellate authority failed to
                                         consider such aspect of the matter and
                                         the impugned order of dismissal of the
                                         petitioner        suffers   from     manifest
                                         arbitrariness. The order of dismissal
                                         is an instance of violation of natural
                                         justice because of non-consideration
                                         of medical documents filed by the
                                         petitioner at the time of departmental
                                         inquiry.”
                                 5. Learned counsel for the appellants
                                 submits that the learned Single Judge did
                                 not consider the fact that due procedure had
                                 been followed in the present matter, and the
                                 order of dismissal was passed in accordance
                                 with law. The respondent having been found
                                 in violation of departmental rules and
                                 regulations was dismissed from the service.
                                 Learned counsel further submits that the
                                 application          of   Bachubhai        Hassanalli
                                 Karyani v. State of Maharashtra reported
                                 in (1971) 3 SCC 930 is unwarranted in the
                                 present       case.       Bachubhai        Hassanalli
                                 Karyani (supra) is related to proving the
                                 guilt of an accused in a criminal trial, and
                                 the facts therein can be distinguished from
                                 the present case. In a criminal trial the guilt
                                 of the accused has to be proved beyond
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                                 reasonable doubts, whereas, disciplinary
                                 proceedings are conducted on the basis of
                                 preponderance of probabilities.
                                 6. Learned counsel for the respondent
                                 submits that the learned Single Judge
                                 passed the impugned order after careful
                                 consideration of materials available on
                                 record, and is well founded and supported
                                 by reason. Therefore, the order of the
                                 learned       Single     Judge      requires     no
                                 interference by this court.
                                 7. On perusal of materials on record, and
                                 the submissions advanced by the parties, it
                                 is evident that a major punishment was
                                 imposed on the respondent based on the
                                 allegation that he had consumed alcohol,
                                 and was found in an intoxicated state. The
                                 allegation was supported only by report of a
                                 doctor on the basis of breathalyzer test. It is
                                 also not disputed that no blood or urine test
                                 of the petitioner was conducted, which could
                                 conclusively show the consumption of
                                 alcohol, if any.
                                 8. Further, appellants have been unable to
                                 show that how Bachubhai Hassanalli
                                 Karyani       (supra)     does     not   find    any
                                 application in the present case. The Hon’ble
                                 Supreme Court, has clearly laid down in
                                 Bachubhai Hassanalli Karyani (supra) that
                                 drunkenness          cannot   be    said    to    be
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                                 conclusively proved unless urine or blood
                                 test is carried out. The relevant paragraphs
                                 of the said judgment are reproduced as
                                 under:
                                         “4. ……..The doctor had admitted that
                                         a person, placed in the circumstances
                                         in which the appellant was put as a
                                         result of the accident, would be under
                                         a nervous strain and his gait might be
                                         unsteady.    The   doctor   had   also
                                         admitted that a person could smell of
                                         alcohol without being under the
                                         influence of drinking. No urine test of
                                         the appellant was carried out and
                                         although the blood of the appellant
                                         was sent for chemical analysis, no
                                         report of the analysis was produced by
                                         the prosecution.
                                         5. It seems to us that on this evidence
                                         it cannot be definitely held that the
                                         appellant was drunk at the time the
                                         accident occurred.”


                         7.2. Another judgment passed by this Hon’ble

         Court in case of Manoj Kumar Thakur Vs. The State of Bihar

         & Ors passed in C.W.J.C. No. 4181 of 2021, decided on

         25.06.2025, its relevant para 4 & 5 reads as under:-

                                 “4. While assailing the orders impugned,
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                                 learned        Advocate    for      the      petitioner
                                 contended that the entire allegation against
                                 the petitioner rest upon a Breath Analyser
                                 Test, based upon which it is alleged that the
                                 petitioner was found under influence of
                                 liquor while creating ruckus at Gate No. 2.
                                 However, the Breath Analyser Test cannot
                                 be said to be a conclusive proof of
                                 consumption of alcohol in absence of any
                                 urine and blood test. The above mentioned
                                 issue was the subject for consideration in
                                 the case of Manju Devi vs. The State of
                                 Bihar & Ors. [CWJC No. 2590 of 2022],
                                 wherein a Bench of this Court placing
                                 reliance upon the decision in Bachubhai
                                 Hassanalli           Karyani      vs.      State    of
                                 Maharashtra [(1971) 3 SCC 930] recorded
                                 the observation of the Apex Court that no
                                 conclusion with regard to consumption of
                                 alcohol by a person can be made on the
                                 facts that the appellant’s breathe was
                                 smelling of alcohol, that his gait was
                                 unsteady and speech was incoherent and
                                 that     his     pupils    were         dilated.   The
                                 consumption of alcohol can only be
                                 ascertained by way of blood and urine test
                                 by a person suspected to have consumed
                                 alcohol.
                                 5. It is the specific contention of the
                                 petitioner that the petitioner had never been
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                                 subjected to any blood and urine test, hence
                                 Breath Analyser report alone could not be
                                 an admissible evidence to return the finding
                                 that the petitioner was found in an
                                 inebriated condition or in the influence of
                                 liquor. It is further contended that in
                                 identical facts the coordinate Bench of this
                                 Court in the case of Manju Devi (supra) has
                                 set aside the order of dismissal which was
                                 passed only upon the finding of the Enquiry
                                 Officer that the delinquent was found under
                                 the influence of alcohol on the basis of the
                                 Breath Analyser Test. Reliance has also
                                 been placed on a judgment rendered by the
                                 Apex Court in the case of Munna Lal vs.
                                 Union of India & Ors. [(2010) 15 SCC 399]
                                 as also the decision rendered by this Court
                                 in the case of Jawahar Kumar Singh vs.
                                 The State of Bihar & Ors. [2019(2) PLJR
                                 156].”


                         8. It transpires to this Court that the finding of

         consumption of alcohol as consistently decided by this Court as

         well as approved by the Hon’ble Division Bench and on the

         basis of judgment of Hon’ble Supreme Court, it has been held

         that the breath analyzer report is not a conclusive proof of

         consuming the liquor by a person and consumption of alcohol

         can only be ascertained by way of blood and urine test of a
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         person, suspected to have consumed alcohol.

                         9. This Court reached on the conclusion that the

         enquiry report furnished by the Enquiry Officer, the decisions of

         the Disciplinary Authority as well as the Appellate Authority,

         have been passed without application of mind to the defence

         taken by the petitioner as required under Rule 17(14) of the

         Bihar CCA Rules, 2005 and there is non-consideration of ratio

         laid down in the judgments discussed above and subsequently,

         the Appellate Authority has also failed to discharge his

         obligation at the time of passing the order in appeal.

                         10. Hence, in view of the discussions made above,

         this Court finds that the impugned orders have been passed

         without appreciation of rules laid down and consideration of law

         and they are fit to be set aside. Hence, the order passed by the

         Disciplinary Authority contained in Memo No. 1101 dated

         06.05.2022 (Annexure P/8),               order passed by the Appellate

         Authority contained in Memo No. 529 dated 19.07.2022

         (Annexure P/9) and the order passed in the memorial contained

         in Memo No. 689 dated 23.11.2022 (Annexure P/11), all are

         hereby set aside. The petitioner is hereby directed to be

         reinstated in the service.

                         11. So far as the consequential benefits are
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                      concerned, the same shall be examined by the respondents in

                      view of the mandate of the Hon’ble Supreme Court of India in

                      the case of Deepali Gundu Surwase Vs. Kranti Junior

                      Adhyapak Mahavidyalaya, reported in (2013) 10 SCC 324.

                                      12. Accordingly, with the aforesaid observation and

                      direction, this writ petition stands allowed.




                                                                   (Dr. Anshuman, J)
Divyansh/-
AFR/NAFR
CAV DATE                     NA
Uploading Date             04/04/2026
Transmission Date            NA


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