1 WPS No. 1186 of 2016 2025:CGHC:15872 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 1186 of 2016  Shankar Lal Dhurve S/o Shri Raghbar Ram Dhurve, aged about 38 years, Caste Gond, R/o. village Achholi, Police Station, Post and Tahsil – Dongargarh, District – Rajnandgaon, Chhattisgarh. ... Petitioner versus 1. State of Chhattisgarh, through the Secretary, Department of Home (Police), New Mantralaya, Mahanadi Bhawan, New Raipur, Chhattisgarh. 2. The Director General of Police, Department of Home, Police Head Quarter – Raipur, Districtc – Raipur, Chhattisgarh 3. Inspector General of Police, Durg Range, Durg, Chhattisgarh. 4. Superintendent of Police, District Rajnandgaon, Chhattisgarh. 5. Sub Divisional Officer (Police), Ambagarh Chowki, District Rajnandgaon, Chhattisgarh. 6. Anil Agrawal, Sub Inspector (Police) (The Then Station House Officer, Police Station – Aundhi, District Rajnandgaon, Chhattisgarh. ... Respondents For Petitioner :- Mr. Shashi Bhushan Tiwari, Advocate For Respondents No.1-5 :- Mr. Sharad Mishra, Panel Lawyer ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.04.13 12:30:32 +0530 2 WPS No. 1186 of 2016 SB- Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 01.04.2025 1. Invoking jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner herein has filed this writ petition calling in question legality, validity and correctness of order dated 27.02.2016 (Annexure P-1), whereby the mercy petition of the petitioner has been dismissed while affirming judgment dated 02.11.2015 (Annexure P/2) passed by the appellate authority, by which the order passed by the disciplinary authority/respondent No.4 dated 23.06.2007 (Annexure P/4) terminating the petitioner from his service as he was found to be absent on 25.02.2007 and also on the same day he was found to be in drunken state and misbehaved with officers, has been affirmed. Factual matrix of the case:- 2. The present petitioner, while working on the post of Police Constable, was served with charge-sheet dated 18.04.2007 for unauthorised absence on 25.02.2007 as well as for his misbehaviour with the officers and coming to the police station in drunken condition. 3 WPS No. 1186 of 2016 3. Against the said act of the present petitioner, the enquiry was conducted by Sub-Divisional Officer (Police), Ambagarh Chowki/respondent No.4 herein, who submitted his report on 03.06.2007, in which the act of the appellant was found violative of Rules 3(1)(2), 23(क), (ख), (ग), and 3(1)(3) of Chhattisgarh Civil Services (Conduct) Rules, 1965 and Regulation 64(4)(11) of the Chhattisgarh Police Regulations. The said inquiry report was also served to the petitioner on 04.06.2007. Thereafter, vide order dated 23.06.2007 passed by Superintendent of Police, Rajnandgaon/respondent No.4 herein, the petitioner was terminated from his services, against which he preferred an appeal before the Inspector General of Police/respondent No.3 herein which also stood dismissed on 02.11.2015. Against the judgment passed by respondent No.3 herein, he preferred mercy petition, which has also been dismissed vide impugned order dated 27.02.2016. Assailing the impugned order (Annexure P/1) this petition has been filed. Submission of the parties:- 4. Mr. Shashi Bhushan Tiwari, learned counsel for the petitioner, would submit that for unauthorised absence only 4 WPS No. 1186 of 2016 for one day, major punishment could not have been inflicted. He would also submit that it is the case of the State that the petitioner came to the police station in drunken condition on 25.02.2007, however, neither medical test nor blood test was conducted by the respondent authorities to find out whether the petitioner was in the state of intoxication or not on that day, as such, the said finding of the respondent is totally perverse finding and therefore, the instant writ petition deserves to be allowed and relief as prayed for be granted by reinstating the petitioner in service along with all consequential benefits. To buttress his submission, he relied upon the decisions rendered by the Supreme Court in the matters of Bachubhai Hassanalli Karyani Vs. State of Maharashtra 1 and Munna Lal Vs. Union of India and Others. 2 . 5. Mr. Sharad Mishra, learned counsel for the State, would submit that the petitioner remained unauthorisedly absent from duty and in departmental inquiry, misconduct has also been found proved by the disciplinary authority on the part of the petitioner, as such, the order impugned is well- 1 (1971) 3 SCC 930 2 (2010) 15 SCC 399 5 WPS No. 1186 of 2016 merited, the petitioner has rightly been dismissed from service and no interference is required in exercise of jurisdiction under Article 226 of the Constitution of India. Therefore, the present writ petition is liable to be dismissed. 6. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also perused the records minutely. Discussion & analysis:- 7. Before proceeding further, it would be appropriate to notice the charges framed against the petitioner by the inquiry officer vide report dated 03.06.2007, which states as under :- “1. दिाሪक-25/2/2007 क ाሪक्सल ्ቚभादित थााሪ औंधी ेሰ 13:20 बजे तक हाजेरी दियूटी लगई गई था परीन्त# कत$व्यू स अाሪ#पቝኌ(थात रीहाकरी छ०ग० सिसदिल स आचरीण दिाሪयूेሰ-1965 क दिाሪयूेሰ-3 क/ क दिक (1) क/ उप क दिक ( )) क उቤ቏घाሪ करीाሪ| 2. दिाሪक-25.2.2007 क शरीब क साሪ दिकए हा5ए हालत ेሰ थााሪ क असिधीकरी/ केሰ$चरिरीयू7 क सथा अाሪ#शसाሪहााሪत ्ቚदिश$त करी छ०ग० सिसदिल स आचरीण दिाሪयूेሰ-1965 क दिाሪयूेሰ-23 क/ उप क दिक (क), (ख), (ग) ए छ०ग० सिसदिल स आचरीण दिाሪयूेሰ-1965 क दिाሪयूेሰ-3 क/ क दिक (1) क/ उप क दिक (ताሪ) ए प#सिलस रीग्यू#लशाሪ क/ क दिक-64 (4) (11) क दिपरीत कयू$ करीाሪ|" 6 WPS No. 1186 of 2016 8. The first charge :-So far as the first charge is concerned, the petitioner remained absent on 25.02.2007 and did not report on duty, which appears to be correct. Even, with regard to the finding of the said charge, it could not be seriously contradicted on behalf of the petitioner and also learned counsel for the petitioner could not point out any illegality in the said finding. Therefore, this Court also hereby affirms the said finding recorded by the inquiry officer. 9. The second charge :- By going through the records, it appears that the charge on the petitioner for coming to the police station in drunken state and misbehaving with the officer in the police station have been found proved on the basis of panchnama of smell test conducted by police officers. Coming to the police station in the state of intoxication and exhibiting indiscipline is a major misconduct. However, the said misconduct of the petitioner is based on panchnama which was prepared on 25.02.2007 vide Annexure P/8. The witnesses of the panchnama have clearly stated about the drunken condition of the petitioner and to prove that the drunkenness of the petitioner, they had smelled the 7 WPS No. 1186 of 2016 petitioner’s mouth to Chandrabhushan Tandon, Head Constable, Police Station Oundhi (Witness No.7). 10.In this regard, the decision rendered by the Supreme Court in the matter of Bachubhai Hassanalli Karyani (supra) may be noticed herein profitably, in which their Lordships have categorically held that drunkenness cannot be said to be conclusively proved unless urine test or blood test is carried out and in absence of urine test or blood test, it cannot be definitely held that accused was in state of intoxication at the time of incident. 11.Similarly, in the matter of Munna Lal (supra), the Supreme Court was dealing with charge against a Police Sub Inspector, who was allegedly found in drunken condition while on duty and it was held by their Lordships in paragraphs No. 4 & 5 as under: “4. The learned counsel appearing for the respondent submitted that the appellant was found guilty of dereliction of duty previously also and there were other disciplinary proceedings against the conduct of the appellant. But in the instant case it was not proved that the appellant was drunk on the 8 WPS No. 1186 of 2016 day when he was in duty. Evidence was not satisfactory to prove that he was found with any alcohol and he was also not taken to Safdarjung Hospital as suggested by the first doctor. 5. In the absence of positive evidence, we are of the view that the charge levelled against the appellant was not proved satisfactorily. In the absence of sufficient proof, the disciplinary authority should not have imposed such penalty. Therefore, the punishment imposed was illegal and the appellant is entitled to be reinstated in service and he is entitled to get 50% of the back wages for the period he was out of service. The respondents are directed to reinstate the appellant in service forthwith. The appellant's service during this period would be treated for other service benefits such as seniority, increment and pension.” (Emphasis supplied) 12.Also the Division Bench of Calcutta High Court in the matter of Narendra Dutta Rai Vs. Union of India 3 has relied upon the principles of law laid down by their Lordships of the Supreme Court in the matters of Bachubhai Hassanalli Karyani (supra) and Munna Lal (supra) and held in paras 49 & 51 as under: “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 3 2018 SCC OnLine Cal 8613 9 WPS No. 1186 of 2016 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 appellant is absolutely false. This shows the predetermined and biased mind set of the disciplinary authority who conducted the inquiry against the appellant.” (Emphasis supplied) 13.Coming to the facts of the present case in light of the above stated decisions of the Supreme Court as well as High Court, it is quite clear that in the instant case, the inebriation of the petitioner is sought to be proved on the basis of panchnama which is based on smell test, but the disciplinary authority did not ask the petitioner to undergo medical or blood test to 10 WPS No. 1186 of 2016 establish the fact of drunkenness. As such, in the light of the decisions rendered by the Supreme Court in the matters of Bachubhai Hassanalli Karyani (supra), and Munna Lal (supra) followed by the Calcutta High Court in the matter of Narendra Dutta Rai (supra), the procedure adopted by the disciplinary authority for proving the fact of inebriation while on duty would not be the correct manner of proving the charge against the petitioner herein. Even in absence of medical test or blood test to prove the intoxicating condition of the petitioner, the disciplinary authority, appellate authority and the final authority have concurrently erred in upholding the second charge against the petitioner herein, accordingly, second charge with regard to the petitioner could not be established. Conclusion:- 14. Accordingly, it is held that the first charge i.e. for remaining one day unauthorised absent, has rightly been found to be proved by the Disciplinary Authority and upheld by the Appellate Authority. However, the second charge that the petitioner misbehaved with the police officers has not been in 11 WPS No. 1186 of 2016 accordance with law, therefore, the finding in this regard is hereby set aside. Consequently, the punishment of dismissal from service is modified and the petitioner is inflicted with minor penalty of withholding one increment for a period of one year as provided under Regulation 217(a) of the Chhattisgarh Police Regulations. 15. In view of the above discussion and analysis, the petitioner is directed to be reinstated in his service along with all consequential benefits except back wages. He will be entitled to get to the extent of 50% back wages, for the period he was out of service, in light of decision of the Supreme Court in the matter of Munna Lal (supra) which has been also relied upon by learned counsel for the petitioner. 16. The instant writ petition is partly allowed to the extent indicated herein above. No cost(s). Sd/- (Sanjay K. Agrawal) Judge Saxena/Ankit