Patna High Court
BiharversusAswasthama Mahto @ Ashwathama Mahto
- Decided
- Disposal
- DISMISSED
Holding
The appellate court held that the disciplinary action based solely on a breathalyzer report without blood or urine analysis was arbitrary and violative of natural justice, and therefore the Single Judge’s order setting aside the dismissal was affirmed.
Summary
The respondent, a constable turned havaldar in the Bihar Military Police, was dismissed after being alleged to have consumed alcohol on 31-12-2019, based solely on a breathalyzer test and a doctor's report, without any blood or urine analysis. He challenged the dismissal, arguing that the breath smell could be due to medication and that the disciplinary authority failed to follow proper procedural safeguards. The Single Judge set aside the dismissal, holding that the breathalyzer report was not conclusive proof of intoxication and that the disciplinary process violated natural justice. On appeal, the High Court examined whether the Supreme Court’s decision in Bachubhai Hassanalli Karyani v. State of Maharashtra, which requires blood or urine tests to prove drunkenness, applied to disciplinary proceedings. The Court concluded that the disciplinary authority’s reliance on the breathalyzer alone rendered the dismissal arbitrary and affirmed the Single Judge’s order. Consequently, the intra‑court appeal was dismissed, leaving the respondent’s dismissal in place and the benefits directed by the Single Judge intact.
Issues considered
- Whether a breathalyzer test alone is sufficient evidence to establish consumption of alcohol for disciplinary action under the Bihar Prohibition and Excise Act, 2018.
- Whether the disciplinary authority violated principles of natural justice by not conducting blood or urine tests.
- Whether the Supreme Court’s ruling in Bachubhai Hassanalli Karyani v. State of Maharashtra is applicable to departmental disciplinary proceedings.
- Whether the dismissal order was arbitrary and therefore liable to be set aside.
Subjects
- disciplinary proceedings
- police service dismissal
- breathalyzer test
- natural justice
- Bihar Prohibition and Excise Act
- intra-court appeal
- letters patent appeal
- procedural fairness
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1095 of 2024
In
Civil Writ Jurisdiction Case No.15963 of 2021
======================================================
1. The State of Bihar through the Home Secretary, Bihar, Patna.
2. The Director General-cum-Inspector General of Police, Bihar, Patna.
3. The Deputy Inspector General of Police, Bihar Military Police, North
Mandal, Muzaffarpur.
4. The Commandant of Bihar Military, Police- 7, Katihar.
5. The Investigation/Enquiry Officer-cum-Chief Inspector (C), Bihar Military
Police-7, Katihar.
... ... Appellant/s
Versus
Aswasthama Mahto @ Ashwathama Mahto Son of Late Dallu Mahto
Resident of Village- Kocho (Koncho), P.O.- Tutki Nawadih, Police Station-
Silli, District- Ranchi (Jharkhand).
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Manoj Kumar, AC To GP-4
For the Respondent/s : Mr. Upendra Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
4 26-02-2026 The present intra court appeal is preferred against the
order dated 09.05.2024 passed in CWJC No. 15963 of 2021,
whereby the learned Single Judge allowed the writ petition, and
has set aside the order of punishment of dismissal from service
imposed upon the respondent. Further, the appellants have been
directed to give all financial benefits to the respondent.
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2. The brief facts giving rise to the present appeal are
that the respondent was initially appointed as a Constable in the
Bihar Military Police (BMP) and had rendered about 33 years of
service. Later, he was promoted to the post of Havaldar, and was
serving in E-Company, BMP-7, Katihar, on deputation at Supaul
Stadium, Supaul. On 31.12.2019, he was alleged to have been
found in an intoxicated state, and a breathalyzer test was
conducted on him. Subsequently, a case (Supaul P.S. Case No.
828/2019) was registered against him under Sections 37(a) and
37(b) of the Bihar Prohibition and Excise Act, 2018, alleging
that he had consumed alcohol. Consequently, he was suspended
and served a show-cause notice (Memo No. 356 dated
14.02.2020) asking him to explain why disciplinary action
should not be taken against him.
3. The respondent in his reply to show cause stated
that he had only consumed certain medicines, which caused
alcohol smell in his breath. The appellant-authorities did not
consider this to be a reasonable explanation and found the
respondent guilty, and passed the order of dismissal. Dissatisfied
with the dismissal order, the respondent preferred an appeal
before the Deputy Inspector General of Police, BMP,
Muzaffarpur, which was dismissed. Thereafter, the respondent
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filed the impugned writ application, which came to be allowed.
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, 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
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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
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 reasonable doubts, whereas, disciplinary
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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 conclusively proved
unless urine or blood test is carried out. The relevant paragraphs
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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.”
9. The delinquent during departmental inquiry has
specifically made his defence supported with the documentary
evidence that at the relevant time he had taken homeopathic
medicine as prescribed by the doctor, thus, such consumption of
homeopathic medicine could have caused/indicated alcohol in
breathalyzer test. Whereas, the findings of the inquiry report,
nowhere discuss about the defence taken by the delinquent
(respondent), as indicated above. Therefore, on this count also
the finding of the said inquiry report suffers from the vice of
arbitrariness and impropriety.
10. As such, it is evident that the appellant-authorities
failed to adhere to mandatory procedural requirements;
specifically, no blood or urine analysis was conducted to
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substantiate the finding that the respondent was under the
influence of alcohol. Therefore, the disciplinary action initiated
against the respondent, resting solely on a finding devoid of the
requisite medical corroboration is legally unsustainable and
cannot be upheld.
11. Considering the discussions made above, we find
no illegality or perversity in the order of the learned Single
Judge, and the order is hereby affirmed.
12. Accordingly, the present intra court appeal stands
dismissed.
13. Pending application(s), if any, shall stand disposed
of.
(Sudhir Singh, J)
(Rajesh Kumar Verma, J)
Anushka/-
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