Supreme Court of India
BRIJESH CHANDRA DWIVEDI (DEAD) THR. LRS. versus SANYA SAHAYAK AND ORS. on 25 January 2022
SUPREME COURT REPORTS
[2022] 1 S.C.R.
ABRIJESH CHANDRA DWIVEDI (DEAD) THR. LRS.
v.
SANYA SAHAYAK AND ORS.
(Civil Appeal No. 7382 of 2021)
BJANUARY 25, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Service law: Armed service – Misconduct – Dismissal fromservice – Appellant- employee was driver in the Military and wasposted at the 12[th] Battalion, P.A.C. at Fatehpur – Allegation againstChim was that on the fateful day, he was driving the vehicle underthe influence of liquor when the truck/vehicle was carrying P.A.C.personnel and the said vehicle/truck met with an accident with ajeep – His defence that due to the brake failure, the accident tookplace and the truck dashed to the backside of the jeep wasDdisbelieved and disciplinary authority awarded punishment ofdismissal from service – Held: The fact that he was driving the truckunder the influence of alcohol was established and proved, evenon the medical examination conducted on the same date – Drivinga truck carrying the P.A.C. personnel under the influence of alcoholis a very serious misconduct and such an indiscipline cannot beEtolerated and that too in the disciplined Military – However, at thesame time, in view of statement of appellant at the time of the enquiryand the explanation given by him that on going to duty on takingthe vehicle from battalion, he had not consumed the liquor andafter the accident with the objective to suppress the fear on comingFto battalion and on parking the vehicle, he went directly to busterminal, Ghazipur and consumed 100 ml of country made wine,though not accepted but may be plausible and in view of his 25years of long service and it being a minor accident which resultedinto some loss to the vehicle and the fact that the employee hassince died, the punishment of dismissal would be too harsh and isGconverted into compulsory retirement.
Partly allowing the appeal, the Court
HELD: 1. Merely because there was no major loss and itwas a minor accident cannot be a ground to show leniency. It wasHsheer good luck that the accident was not a fatal accident. It could
have been a fatal accident. When the employee was driving atruck carrying the P.A.C. personnel, the lives of those P.A.C.personnel who were travelling in the truck were in the hands ofthe driver. Therefore, it can be said that he played with the livesof those P.A.C. personnel, who were on duty and travelling fromFatehpur to Allahabad on Kumbh Mela duty. Even otherwise,driving a vehicle under the influence of alcohol is not only amisconduct but it is an offence also. Nobody can be permitted todrive the vehicle under the influence of alcohol. Such amisconduct of driving a vehicle under the influence of alcoholand playing with the life of the others is a very serious misconduct.There are also other misconducts earlier committed by theemployee. [Paras 10, 11][244-B-E]
2. However, at the same time, considering the statementof the employee at the time of the enquiry and the explanationgiven by him that on going to duty on taking the vehicle frombattalion, he had not consumed the liquor and after the accidentwith the objective to suppress the fear on coming to battalionand on parking the vehicle, he went directly to bus terminal,Ghazipur and consumed 100 ml of country made wine, thoughhas not been accepted but that might be plausible and consideringhis 25 years of long service and fortunately it was a minor accidentwhich resulted into some loss to the vehicle and considering thefact that the employee has since died, the punishment of dismissalcan be said to be too harsh and may be treated one for compulsoryretirement. [Para 12][244-E-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7382 of2021.
From the Judgment and Order dated 16.11.2018 of the High Courtof Judicature at Allahabad in Civil Misc. Writ Petition No.35483 of 2002.
Manohar Pratap, Ms. Pallavi Sharma, Advs. for the Appellants.Rajesh Mani Tripathi, Sanjay Kumar Tyagi, Advs. for theRespondents.
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AThe Judgment of the Court was delivered by
M. R. SHAH, J.
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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature at Allahabad in CivilMiscellaneous Writ Petition No. 35483 of 2002 by which the High CourtBhas dismissed the said writ petition refusing to set aside the order ofdismissal passed by the Disciplinary Authority, the employee (now theheirs of the deceased employee) has preferred the present appeal.
2. That the employee Brijesh Chandra Dwivedi (since deceased)was a driver posted at the 12[th] Battalion, P.A.C. at Fatehpur. While heCwas on duty driving a truck carrying the P.A.C. personnel from Fatehpurto Allahabad on Kumbh Mela duty, it was involved in a motor accidentwith a jeep. He was charged for having caused the accident by dashinghis truck on the back side of the jeep while driving under the influence ofalcohol. On medical examination conducted on the same date, i.e.,D02.02.2000, he was found to have been under the influence of alcohol. Adepartmental enquiry was initiated against him. On completion of thedepartmental enquiry, Inquiry Officer proposed punishment of dismissal.Second show-cause notice was issued by the Disciplinary Authority andafter considering his reply thereto the punishment of dismissal wasawarded which was confirmed by the Appellate Authority.E
3. Feeling aggrieved and dissatisfied with the award of punishmentof dismissal, the employee filed a writ petition before the High Courtbeing Civil Miscellaneous Writ Petition No. 35483 of 2002. Before theHigh Court, it was also submitted that punishment of dismissal isdisproportionate to the misconduct proved. By the impugned judgmentFand order, the High Court has dismissed the writ petition and has alsoheld that in the facts and circumstances of the case, a punishment ofdismissal cannot be said to be disproportionate to the misconductcommitted. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the employee had preferred theGpresent appeal. During the pendency of the proceedings before this Court,the employee has died and thereafter his heirs were brought on recordand the present appeal is being prosecuted by the heirs of the deceased.
4. Learned counsel appearing on behalf of the appellant/s hassubmitted that considering the fact that it was a minor accident, whichresulted into some loss to the vehicle and considering his 25 years longH
service, the order of dismissal is disproportionate to the misconduct proved.It is, therefore, requested to take the lenient view and to convert thedismissal into compulsory retirement.
5. Learned counsel appearing on behalf of the respondent/s hassubmitted that the aspect of disproportionate punishment imposed hasbeen considered by the High Court in detail and having considered thepast record and the misconduct committed by the deceased employee inthe past and having found that he was a habitual consumer of liquor andhe was remaining absent and even in the year 1987, when he wasappointed in the 33[rd] Battalion in P.A.C. Jhansi, he misbehaved with thesenior officers and was punished with one parininda lekh, the award ofpunishment of dismissal cannot be said to be disproportionate.
6. It is submitted that driving the vehicle carrying the soldiersunder the influence of alcohol cannot be tolerated and it can be said tobe gross indiscipline. It is submitted that it was fortunate that nobodydied in the accident because of the good luck of those soldiers, whowere travelling in the vehicle. It is submitted that accident could havebeen fatal if somebody had died. It is submitted that driving a vehicleunder the influence of alcohol is not only a misconduct but it is an offencealso. It is therefore submitted that the deceased employee is not entitledto any leniency.
7. Heard the learned counsel for the respective parties at length.
8. At the outset, it is required to be noted that in the disciplinaryproceedings, the misconduct of driving the vehicle under the influenceof the alcohol and when the employee was driving the vehicle under theinfluence of alcohol the vehicle met with an accident has been held to beproved and therefore the Disciplinary Authority awarded the punishmentof dismissal. The only prayer on behalf of the appellant/s is that thepunishment of dismissal is disproportionate to the misconduct provedand leniency may be shown and the order of dismissal be converted intocompulsory retirement.
9. However, it is required to be noted that the employee was thedriver posted in the Military and he was posted at the 12[th] Battalion,P.A.C. at Fatehpur. The allegation against the employee is at the timewhen the employee was driving the vehicle under the influence of liquor,the truck/vehicle was carrying P.A.C. personnel and the said vehicle/truck met with an accident with a jeep. His defence that due to the A
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Abreak failure, the accident took place and the truck dashed to the backsideof the jeep has been disbelieved. The fact that he was driving the truckunder the influence of alcohol has been established and proved, even onthe medical examination conducted on the same date. Driving a truckcarrying the P.A.C. personnel under the influence of alcohol is a veryserious misconduct and such an indiscipline cannot be tolerated and thatBtoo in the disciplined Military.
10. Merely because there was no major loss and it was a minoraccident cannot be a ground to show leniency. It was sheer good luckthat the accident was not a fatal accident. It could have been a fatalaccident. When the employee was driving a truck carrying the P.A.C.Cpersonnel, the lives of those P.A.C. personnel who were travelling in thetruck were in the hands of the driver. Therefore, it can be said that heplayed with the lives of those P.A.C. personnel, who were on duty andtravelling from Fatehpur to Allahabad on Kumbh Mela duty.
11. Even otherwise, driving a vehicle under the influence of alcoholDis not only a misconduct but it is an offence also. Nobody can be permittedto drive the vehicle under the influence of alcohol. Such a misconduct ofdriving a vehicle under the influence of alcohol and playing with the lifeof the others is a very serious misconduct. There are also othermisconducts earlier committed by the employee.E
12. However, at the same time, considering the statement of theemployee at the time of the enquiry and the explanation given by himthat on going to duty on taking the vehicle from battalion, he had notconsumed the liquor and after the accident with the objective to suppressthe fear on coming to battalion and on parking the vehicle, he wentFdirectly to bus terminal, Ghazipur and consumed 100 ml of country madewine, though has not been accepted but that might be plausible andconsidering his 25 years of long service and fortunately it was a minoraccident which resulted into some loss to the vehicle and considering thefact that the employee has since died, we find that the punishment ofdismissal can be said to be too harsh and may be treated one forGcompulsory retirement.
13. In view of the above and for the reasons stated hereinaboveand in the peculiar facts and circumstances of the case, narratedhereinabove, the award of punishment of dismissal can be said to be tooharsh, the punishment of dismissal is directed to be converted intoHcompulsory retirement of the employee. As the employee has since died, and on converting the punishment of dismissal to that of compulsoryretirement, death-cum-retirement benefits as also the benefit of familypension, if any, shall be paid to the legal heirs of the deceased employeein accordance with law and bearing in mind that punishment of dismissalhas now been converted into one of compulsory retirement. The presentappeal is partly allowed to the aforesaid extent. However, there shall beno order as to costs.
Devika Gujral
Appeal partly allowed.
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