Writ appeal against reinstatement of an employee dismissed after a breath analyser reading. The court upheld that authorities are bound by their own circular prescribing punishment scales, dismissed the appeal, affirming partial relief: reinstatement, one increment cut, no back wages.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE G.NARENDAR AND
HON’BLE SRI JUSTICE NYAPATHY VIJAY
WRIT APPEAL NO.593 of 2023
JUDGMENT:- (per Sri Justice G.Narendar)
Heard learned counsel for the Appellants-Corporation and learned counsel for the 1st Respondent.
2 . The Appellants is the Employer-Transport Department and this Appeal is preferred being aggrieved by the order of the learned single Judge rendered in W.P.No.18876 of 2021, whereby the learned single Judge was pleased to grant partial relief to the Respondent No.1 by the following order.
“13. Even Section 204 of the Motor Vehicles Act indicates about the conduct of laboratory test. In the present case, there is discrepancy of reading and the device is only a prima facie evidence of alcohol in blood that it cannot be a decisive test to impose punishment against the delinquent, as discussed above there can be false implication and this Court held that the delinquent ought to have been subjected to medical rather than breath analyzer. For the above discussion and as per the quoted judgments, this Court feels that the order of removal/dismissal is liable to be set aside.
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however, the petitioner shall suffer the punishment of reducing of one increment without cumulative effect and he is not entitled for any back wages for out of service and the said period shall be calculated for the purpose of pensionary related benefits.”
3 . The learned counsel for the Appellants would contend that
the reasoning given by the learned single Judge that the Corporation is entitled to impose only punishment as stipulated under Circular No.PD 33/2018, dated 12.09.2018, is incorrect and illegal. That the Circular cannot be construed as replacing the Regulations and that the punishment having not been prescribed under Regulations, the Circular would not take precedence over the Regulations and hence the order of the learned single Judge is unsustainable and warrants interference by this Court.
4 . The said contention in our considered opinion is ill-founded & unsustainable. The Circular having been issued in exercise of the powers vested in the competent Authority under the Regulations and having being issued with the object of removing arbitrariness in the matter of imposition of punishments and in order to bring about transparency in functioning of the Disciplinary Authority, it cannot be said to be violative of the Regulations. That apart, the Appellants having issued the Circular
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in exercise of powers vested in, it is not open for the AppellantsCorporation to rely on the same and contend that the same is not binding on the Corporation. The law in this regard is no more Res-Integra. The Authorities are bound by the Instructions/Circulars variably issued by them in exercise of the powers vested in the Corporation. It is not the case of the Appellants that the Corporation is divested of any authority to issue such a Circular. It is also not the case of the Appellants that the Circular has not been followed and that the AppellantCorporation never intended to implement the Circulars.
5.1 Minor offences
| Sl.No. | Nature of Irregularity | Classification | Punishment | |
|---|---|---|---|---|
| 5.1.1 | Upto 10mg/100ml alcohol found during Breath Analyzer checking. |
No action required |
is | |
| 5.1.2 | More than 10mg/100ml to 30 mg/100ml alcohol found during Breath Analyser checking |
Minor-2 | Shall be ma absent for day. Shall not granted leave that subsequently. Advisory letter be given and points are to awarded. charge s required. |
rked that be for day to two be No heet |
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6 . The consumption of alcohol and consequent intoxication and where the level of intoxication is found to be more than 30mg/100ml as per the Breath Analyser test for the first time is classified as Minor-2 misconduct and punishment prescribed is as above.
7 . The charge also does not disclose commission of any earlier offence by the Respondent No.1/Writ Petitioner. Though an attempt would be made by the learned counsel for the Appellants that the delinquent has been found guilty on earlier occasions also, so long as the same is not put against the delinquent by way of, either a charge or show cause notice or atleast under the second show cause notice, issued calling for explanation for proposed punishment, the reliance on the same would be impermissible and unsustainable.
8 . In that view of the matter, in view of the categorization of misconduct as minor and major offences and imposition of punishments having been clarified under the Circular, it was not open for the Authority to act otherwise.
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9 . The Hon’ble Apex Court in the case of Commissioner of Customs, Calcutta and others Vs. Indian Oil Corpn. Ltd. and another1 held at Para 12 as under:
“ 12 . The principles laid down by all these decisions are:
(1) Although a circular is not binding on a court or an assessee, it is not open to the Revenue to raise a contention that is contrary to a binding circular by the Board. When a circular remains in operation, the Revenue is bound by it and cannot be allowed to plead that it is not valid nor that it is contrary to the terms of the statute.
(2) Despite the decision of this Court, the Department cannot be permitted to take a stand contrary to the instructions issued by the Board.
(3) A show-cause notice and demand contrary to the existing circulars of the Board are ab initio bad.
(4) It is not open to the Revenue to advance an argument or file an appeal contrary to the circulars.”
The Constitution Bench of the Hon’ble Apex Court in the
case of Collector of Central Excise, Vadodra Vs. Dhiren Chemical Industries2 held at Para 11 as under:
1 (2004) 3 SCC 488
2 (2002) 2 SCC 127
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“ 11 . We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue.”
10 . In that view of the matter, the learned single Judge was fully justified in interfering with the punishment imposed. That apart, we find that the learned Single Judge has also acted equitably by denying back wages for the period during which the Respondent No.1/Writ Petitioner was kept out of duty. In that view of the matter, the Appeal in our considered opinion is devoid of merits.
11 . Accordingly, the Writ Appeal is dismissed. There shall be no orders as to costs.
As a sequel, miscellaneous petitions, if any, pending in this Writ Appeal shall stand closed.
__________________ JUSTICE G.NARENDAR
_____________________ JUSTICE NYAPATHY VIJAY
23.02.2024 ARB
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HON’BLE SRI JUSTICE G.NARENDAR AND HON’BLE SRI JUSTICE NYAPATHY VIJAY
WRIT APPEAL NO.593 of 2023
Dated: 23.02.2024
ARB
2 issues framed by the court
Whether a departmental circular prescribing punishments takes precedence over the Regulations in imposing punishment for intoxication detected by breath analyser.
Whether the learned single Judge's order setting aside dismissal and reinstating the employee with reduced increment was sustainable.
Colour shows how this judgement treated each authority
Commissioner of Customs, Calcutta and others Vs. Indian Oil Corpn. Ltd. and anotherRelied on¶9
(2004) 3 SCC 488 · Who else cites this
Collector of Central Excise, Vadodra Vs. Dhiren Chemical IndustriesRelied on¶9
(2002) 2 SCC 127 · Who else cites this
Appellants-Corporation (Transport Department)
Respondent No.1
G.Narendar
Nyapathy Vijay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
