Dismissed

Brijesh Chandra Dwivedi v. Sanya Sahayak 12TH Vahani P.A.C. Fatehpur and Others

Allahabad HC16 Nov 2018WRIA/35483/2002

Case brief

AI extract

What is this about?

The High Court dismissed the Writ Petition of a former driver challenging his dismissal from service due to a motor accident while allegedly driving under the influence of alcohol. The bench upheld the Inquiry Officer's findings as neither perverse nor erroneous based on witness testimony and medical reports, refusing to interfere with the disproportionate punishment plea.

What did the court decide?

No order as to costs. Petition dismissed.

Brijesh Chandra Dwivedi Vs Sanya Sahayak 12TH… — Service and Employment | Allahabad HC (2018)

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Court No. - 7

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Case :- WRIT - A No. - 35483 of 2002

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Petitioner :- Brijesh Chandra Dwivedi Respondent :- Sanya Sahayak, 12th Vahani P.A.C. Fatehpur & Others

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Counsel for Petitioner :- Radhey Shyam Dwivedi Counsel for Respondent :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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The petitioner Brijesh Chandra Dwivedi (since deceased) had approached this Court seeking quashing of the order of punishment dated 04.10.2000 passed by the Commandant of the 12^th Battalion, P.A.C, Fatehpur, by which the petitioner had been dismissed from service. The said order was confirmed in Appeal by the D.I.G. (P.A.C), East Zone, Lucknow dated 23.5.2002.

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In short the petitioner was a driver posted at the 12^th Battalion, P.A.C. at Fatehpur. While the petitioner was on duty driving a truck carrying P.A.C. personnel from Fatehpur to Allahabad on Kumbh Mela duty it was involved in a motor accident with a jeep. The petitioner was charged of having caused the accident by dashing his truck on the back side of the jeep while driving under influence of alcohol. On medical examination conducted on the same day i.e. 02.02.2000 he was found to have been under the influence of alcohol.

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In such factual background, a charge-sheet was issued to the petitioner on 06.03.2000 that he had caused the motor accident while driving the Government vehicle in an inebriated state. During the enquiry proceedings (in which the petitioner participated) oral evidence was led by various personnel of P.A.C. They thought the petitioner was in an inebriated state while he was driving the truck. PW-1 Janardan Pandey, PW-2 Ram Dev Yadav, PW-4 Udit Narayan Mishra, PW-5 Kasim

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further testified that at the relevant time the petitioner smelled of alcohol. The doctor who had examined the petitioner also appeared in the inquiry proceedings. He supported the medical report wherein it was clearly mentioned that the petitioner had consumed alcohol though it was somewhat qualified by the words that 'the petitioner was not under toxic effect'.

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In his defence the petitioner led evidence to the effect that he had not consumed any quantity of liquor at the time of accident, but that he got so nervous upon the occurrence of the accident that he consumed 100ml of liquor after reaching the Battalion Headquarter. Other than his own oral testimony, no other evidence was led by the petitioner in support of the defence so set up by him that he consumed alcohol after the accident.

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In such circumstances the Inquiry Officer disbelieved the defence set up by the petitioner of having consumed alcohol after the accident had been caused. In fact, relying on the testimony of the witnesses named above and also referring to the testimony of the petitioner himself the Inquiry Officer concluded, it was established that the petitioner was under the influence of alcohol when the accident was caused by him. The Inquiry Officer proposed punishment of dismissal.

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The second show cause notice appears to have been issued to the petitioner by the Disciplinary Authority and after considering his reply thereto the punishment of dismissal was awarded which has been confirmed.

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Learned counsel for the petitioner submits that the findings recorded by the Inquiry Officer are perverse inasmuch as the petitioner had never admitted to have driven the truck under influence of alcohol as has been recorded by the Inquiry Officer. It is then submitted that the medical report also did not establish that the petitioner had consumed alcohol before the occurrence of the accident and not thereafter.

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A second submission has been advanced by the learned counsel petitioner that in any case the award of punishment of dismissal from service is excessive keeping in mind the fact that only a minor collision had occurred wherein no injury had been caused to any human being nor had any substantial loss been caused to property. In this regard reliance has been placed on decision of this Court in the case of Amarjeet Singh Vs. State of U.P. & Ors. [2004 (1) UPLBEC 57] and Nirmal Singh Tomar Vs. Union of India [2007 (2) UPLBEC 1527] .

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Learned Standing Counsel has opposed the prayer in the writ petition and submitted that the findings of the Inquiry Officer are not solely based on the statement of the petitioner but also on the basis of other evidence that was received by him. In this regard it has been submitted that on one hand all of prosecution witnesses had testified that it had appeared them that the petitioner was under the influence of alcohol before beginning the journey in which accident was caused. In this regard the statement of the petitioner himself read with the medical report indicates that the petitioner had consumed alcohol on the day of accident. In such circumstance, it has been further submitted the defence set up by the petitioner without any independent witness supporting the same, is only an afterthought or a pretext. It is, therefore, submitted the findings of the Inquiry Officer are neither perverse nor erroneous as may warrant any interference under Article 226 of the Constitution.

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As to the submission that the punishment awarded is disproportionate, it has been submitted that undisputedly the petitioner was a member of P.A.C. which is a disciplined force and in any case the petitioner being the driver it could never be accepted that he may undertake to drive a government vehicle under the influence of alcohol. The fact that no human loss occurred in the accident or that no substantial loss of property

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was caused, would be a consideration extraneous to the issue inasmuch as that would remain a matter of chance and no benefit can be drawn by the petitioner from the fact that though he acted with gross negligence under the influence of alcohol in violation of the service rules, he may not be awarded a heavy punishment.

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Having considered the arguments so advanced by the learned counsel for the parties in the first place, it is seen that though the Inquiry Officer has recorded at one place that the petitioner had admitted to have been under the influence of alcohol at the time of accident being caused, that observation is not correct.

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At the same time in the entirety of facts and circumstances and keeping in mind the consistent testimony of all witnesses that the petitioner appeared to be under the influence of alcohol and further in view of the fact that no independent witness testified in favour of the petitioner coupled with the finding of the medical report that the petitioner was under the influence of alcohol at the time of the accident, the conclusion drawn by the Inquiry Officer that the petitioner was under the influence of alcohol is neither perverse nor erroneous.

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As to the submission that the punishment is too harsh or disproportionate, it is seen that in the case of Amarjeet Singh (supra) the charge was of being under the influence of alcohol that petitioner had entered the police station and talked to the Superintendent of Police on the wireless set in indisciplined manner.

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Similarly, the case of Nirmal Singh Tomar (supra) though it was also a case of motor accident caused in an inebriated state, in that case as was shown to the Court that the accident had been caused between a bicycle and the rear end of the vehicle being driven by the delinquent/petitioner in that case. Then

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independent witnesses being passengers stated that the petitioner had not been seen to have consumed any liquor. 15. Thus, in these matters, it is the fact of informant's conduct that may be seen whether the punishment awarded is disproportionate to the offence proven and no hard and fast rule exists in that regard.

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In so far as to the facts and circumstances of the present case are concerned it has largely remained undisputed that the petitioner dashed his vehicle against a jeep travelling in front of his vehicle. The defence set up in that regard was brake failure that was found to be false while he was under influence of alcohol consumed during duty hours. Thus, it is difficult to offer any interference on the plea of disproportionality set up by the petitioner in the present matter.

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Petition lacks merits and is, accordingly, dismissed. No order as to costs.

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Order Date :- 16.11.2018 Shahroz

Brijesh Chandra Dwivedi v. Sanya Sahayak 12TH Vahani P.A.C. Fatehpur and Others

Case brief

What is this about?

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Brijesh Chandra Dwivedi v. Sanya Sahayak 12TH Vahani P.A.C. Fatehpur and Others

Case brief

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