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

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 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 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 p