-1- 2025:CGHC:18828 NAFR HIGH COURT of CHHATTISGARH AT BILASPUR WPS No. 2100 of 2017 Rajkaran Pandey S/o M. K. Pandey, Aged About 48 Years Occupation Service, R/o Kushalpur, New Adarsh Nagar, Gudiya Vila, Tahsil Raipur, P. S. Purani Basti, Distt. Raipur Chhattisgarh. ... Petitioner versus 1- State of Chhattisgarh, Through The Secretary, Department of Home, Mahanadi Bhawan, Mantralaya, New Raipur, District Raipur Chhattisgarh. 2- Director General of Police, Police Headquarter, New Raipur, District Raipur, District : Raipur, Chhattisgarh. 3- Inspector General of Police, Raipur Range, Shankar Nagar, Raipur, Distt. Raipur District : Raipur, Chhattisgarh. 4- Superintendent of Police, Raipur, District Raipur, District : Raipur, Chhattisgarh. ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Sunil Pillai, Advocate For State : Mr. Pramod Shrivastava, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 25.04.2025 1) The petitioner has filed the present petition challenging the orders dated 07.11.2015, 28.04.2016, and 08.03.2017 passed by respondents No.4, 3, and 2, respectively. Digitally signed by NADIM MOHLE -2- 2) Mr. Pillai, learned counsel appearing for the petitioner submits that at the relevant time, the petitioner was posted to the post of Constable at Police Station AJAK, Raipur. He further submits that an article of charge was issued against the petitioner on 21.04.2015 alleging that on 16.12.2015 at about 9:30 PM, the petitioner in a drunken condition, used filthy language against the Head Constable Suresh Mishra. 3) Mr. Pillai further submits that the Enquiry Officer and Presenting Officer were appointed; six witnesses were examined by the prosecution; and the petitioner was afforded the proper opportunity to cross-examine the witnesses. The Enquiry Officer submitted the enquiry report before the Disciplinary Authority. He argues that the Disciplinary Authority, vide order dated 07.11.2015 inflicted the penalty of stoppage of one increment with cumulative effect, which was challenged before the Appellate Authority, and the appeal was dismissed vide order dated 28.04.2016. He further submits that a mercy appeal preferred by the petitioner was also dismissed. 4) Mr. Pillai also submits that though the petitioner was taken for medical examination but proper medical test was not conducted and merely on the basis of smell of alcohol in the breath, a report was given against the petitioner. He argues that the authorities ought to have conducted a proper medical examination, such as a blood or urine test to prove the factum of consumption of alcohol. He would contend that only on the basis of smell, it cannot conclusively be held that a person has consumed alcohol. He places reliance on -3- the judgment passed by the Coordinate Bench in the matter of Kamleshwar Prasad Trivedi through Lrs and Others v. State of Chhattisgarh and Others, reported in 2019 SCC OnLine Chh 111. 5) On the other hand, Mr. Pramod Shrivastava, learned Deputy Government Advocate appearing for the State submits that the petitioner was medically examined and the Doctor found a smell of alcohol in his breath. He also submits that an enquiry was conducted strictly in accordance with the law and there was no procedural lapse. He contends that concurrent findings have been recorded by the Disciplinary Authority and the Appellate Authority, and the scope of judicial review in departmental proceedings being limited, the petition deserves to be dismissed. 6) Heard counsel for the parties and perused the documents. 7) The allegation against the petitioner according to the article of charge is that the petitioner consumed alcohol on the date of the incident, abused the Head Constable Suresh Mishra, and thereby committed misconduct and negligence in contravention of paragraphs 64(4) and 11 of the Police Regulations. 8) It is an admitted fact that the petitioner was taken to the hospital for medical examination. However, the Doctor found a smell of alcohol in the breath of the petitioner. No medical test such as blood or urine analysis or any other standard procedure for detecting alcohol consumption was conducted. 9) In this petition, the petitioner has not raised any other ground such as procedural lapses or violation of the principles of natural justice. The only -4- ground raised is that mere smell from the breath cannot constitute proof of alcohol consumption without proper medical testing. 10) In the matter of Kamleshwar Prasad Trivedi (supra), the Coordinate Bench of this Court, while dealing with a similar issue, in paragraphs 11, 12, and 13, held as under:- “11. In a recent judgment, the Division Bench of Calcutta High Court in the matter of Narendra Dutta Rai v. Union of India, 2018 SCC OnLine Cal 8613, has referred to the Supreme Court's decisions in the matters of Bachubhai Hassanalli Karyani (supra) and Munna Lal (supra), to hold thus in para 49 & 51: 49. Before imposing major penalty upon an employee the respondent authorities ought to have conducted the necessary medical test(s) to come to a definite finding that the employee was under the influence of alcohol which resulted in his misconduct. The respondents ought to have satisfied themselves that the employee was in such a mental and physical condition so as to deprive him of clearness of intellect and control of himself which he would otherwise possess and the said behavior was under influence of alcohol. In the absence of any corroborating piece of evidence an employee ought not to be removed from service. 51. It is the well settled principle of law that the onus to prove the offence lies on the prosecution. In the instant case, it was the obligation of the respondent authorities to prove the case against the appellant and not the other way round. In the absence of any cogent evidence against the appellant the case against him could not have been proved by the respondents. Moreover the definite statement made in Charge II that the attending ‘doctor of the hospital confirmed the intoxicated condition’ of the attending doctor of the false this shows the predetermined and biased mind set of the disciplinary authority who conducted the against the appellant. -5- (Emphasis supplied) 12. In the above matter of Narendra Dutta Rai (supra) before the Calcutta High Court, the charges against the delinquent were exactly similar as has been alleged against the present petitioner. After holding that in the absence of medical opinion about the delinquent's inebriation, the Calcutta High Court partly allowed his appeal and set-aside the order of removal from service. 13. In the case at hand also, inebriation of the appellant is sought to be proved on the basis of Panchnama and oral evidence and not by requiring the petitioner to undergo any medical examination. Such procedure for proving the fact of inebriation while on duty would not be a prudent manner of proving the charge. Thus, charge No. 1 against the petitioner has wrongly been found proved by the Enquiry Officer. Second and third charges depend on the outcome of the first charge, therefore, if the first charge itself falls, the other two charges would fall flat in favour of the petitioner.” 11) Taking into consideration the fact that no proper medical examination was conducted to prove the presence of alcohol in the petitioner’s body to prove that he consumed alcohol on duty, this Court is of the opinion that the impugned orders passed by respondents No.2 to 4 cannot be sustained and are hereby quashed. 12) Accordingly, the petition is allowed. The petitioner would be entitled to all the consequential benefits. Sd/- (Rakesh Mohan Pandey) Judge NADIM