The main legal point established in the judgment is that the punishment of dismissal from service for consuming liquor in non-duty hours must be proportionate to the misconduct and not be wholly excessive, as supported by the Bihar Police Manual and previous judgments.

Mihir Kumar Jha, J. – Heard learned counsel for the petitioner. No one appears on behalf of the State.

2. Assailing the impugned ORDER :of punishment and its affirmance by the appellate authority, Mr. Shyama Prasad Mukherjee, learned senior counsel for the petitioner would submit that such punishment of dismissal from service of the petitioner is wholly disproportionate to the misconduct alleged against him which was confined only to his consuming liquor and misbehaving in the police line in the state of his intoxication in non-duty hours.

3. Mr. Mukherjee has further submitted that from the materials on record, it can also be gathered that the solitary misconduct of consuming liquor and creating commotion in the night of 7.1.1988 at about 8.30 Pm. was proven. In this context, he has also referred to the findings of the Enquiry Officer in the Enquiry Report as also the resultant ORDER :of punishment passed by the disciplinary authority.

4. In the considered opinion of this Court, the charge against the petitioner, being in two parts, namely, consuming liquor in non-duty hours was proved, inasmuch as, the petitioner was medically examined by the doctor at P.M.C.H., who had found the petitioner in a state of intoxication. The other part of the charge that the petitioner had also misbehaved in the state of intoxication was not conclusively proved, inasmuch as, no witness had turned up to support that the petitioner had abused anyone near the office of Sergeant Major.

5. As a matter of fact, the Sergeant Major, being not an eye witness to the occurrence, this part of allegation was sought to be substantiated by the oral evidence of Madhusudan Rai and Algu Singh but they too did not had specifically deposed in course of departmental proceeding as with regard to any specific utterances of the petitioner much less hurling abuse by him. In fact, in the deposition of Algu Singh, he had only stated that the petitioner was in the state of intoxication and had not supported the allegation of hurling abuse to any person. The deposition of other witnesses, namely, Abhimanyu Sharma, Rabindra Sharma, Chandrika Yadav and Umesh Kumar was only to the extent that the petitioner had consumed liquor on account of his suffering from ailment of severe stomach pain and was desperately asking them to take him to the hospital for saving his life.

6. From the documentary evidence also, all that can be said to have been proved against the petitioner is that he had consumed liquor and was in the state of delirium in which a normal person can lose his sense leading to making of senseless utterances. Thus, from the documentary evidence also this much is only established that the petitioner had consumed liquor and was in the state of intoxication and thereby had lost his sense.

7. A question would, therefore, arise whether the most severe punishment of dismissal from service could be inflicted on the petitioner only for consuming liquor (Alcohol) in non-duty hours? There can be no two opinions that the petitioner was a member of a uniform service and had to maintain the highest degree of discipline even in non-duty hours. The explanation of the petitioner that he had consumed alcohol in ORDER :to lessen the unbearable pain in his stomach may or may not inspire confidence but then the alleged misconduct against him remains confined to consuming of liquor and losing his sense due to intoxication in non-duty hours.

8. For this part of proven misconduct, the punishment of dismissal from service of the petitioner is wholly disproportionate if not shocking to the conscience of this Court. Such misconduct cannot be regarded as a grave misconduct or continued misconduct rendering him completely unfit for police service. Such ORDER :of punishment of dismissal from service of the petitioner on account of consuming liquor in non-duty hours, therefore, is a wholly excessive and disproportionate punishment, not permissible even under Bihar Police Manual. Reference