caselaws

Supreme Court of India
Brijesh Chandra Dwivedi (Dead) … vs Sanya Sahayak on 25 January, 2022Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7382 OF 2021

Brijesh Chandra Dwivedi (Dead) Thr. LRs. …Appellant(s)

Versus

Sanya Sahayak and Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Judicature at Allahabad in Civil

Miscellaneous Writ Petition No. 35483 of 2002 by which the High Court

has dismissed the said writ petition refusing to set aside the order of

dismissal passed by the Disciplinary Authority, the employee (now the

heirs of the deceased employee) has preferred the present appeal.

2. That the employee Brijesh Chandra Dwivedi (since deceased) was

a driver posted at the 12th Battalion, P.A.C. at Fatehpur. While he was

on duty driving a truck carrying the P.A.C. personnel from Fatehpur to

Allahabad on Kumbh Mela duty, it was involved in a motor accident with

a jeep. He was charged for having caused the accident by dashing his
Signature Not Verified

truck on the back side of the jeep while driving under the influence of
Digitally signed by R
Natarajan
Date: 2022.01.25
16:45:10 IST
Reason:

alcohol. On medical examination conducted on the same date, i.e.,

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02.02.2000, he was found to have been under the influence of alcohol.

A departmental enquiry was initiated against him. On completion of the

departmental enquiry, Inquiry Officer proposed punishment of dismissal.

Second show-cause notice was issued by the Disciplinary Authority and

after considering his reply thereto the punishment of dismissal was

awarded which was confirmed by the Appellate Authority.

3. Feeling aggrieved and dissatisfied with the award of punishment of

dismissal, the employee filed a writ petition before the High Court being

Civil Miscellaneous Writ Petition No. 35483 of 2002. Before the High

Court, it was also submitted that punishment of dismissal is

disproportionate to the misconduct proved. By the impugned judgment

and order, the High Court has dismissed the writ petition and has also

held that in the facts and circumstances of the case, a punishment of

dismissal cannot be said to be disproportionate to the misconduct

committed. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, the employee had

preferred the present appeal. During the pendency of the proceedings

before this Court, the employee has died and thereafter his heirs were

brought on record and the present appeal is being prosecuted by the

heirs of the deceased.

4. Learned counsel appearing on behalf of the appellant/s has

submitted that considering the fact that it was a minor accident, which

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resulted into some loss to the vehicle and considering his 25 years long

service, the order of dismissal is disproportionate to the misconduct

proved. It is, therefore, requested to take the lenient view and to convert

the dismissal into compulsory retirement.

5. Learned counsel appearing on behalf of the respondent/s has

submitted that the aspect of disproportionate punishment imposed has

been considered by the High Court in detail and having considered the

past record and the misconduct committed by the deceased employee in

the past and having found that he was a habitual consumer of liquor and

he was remaining absent and even in the year 1987, when he was

appointed in the 33rd Battalion in P.A.C. Jhansi, he misbehaved with the

senior officers and was punished with one parininda lekh, the award of

punishment of dismissal cannot be said to be disproportionate.

6. It is submitted that driving the vehicle carrying the soldiers under

the influence of alcohol cannot be tolerated and it can be said to be

gross indiscipline. It is submitted that it was fortunate that nobody died

in the accident because of the good luck of those soldiers, who were

travelling in the vehicle. It is submitted that accident could have been

fatal if somebody had died. It is submitted that driving a vehicle under

the influence of alcohol is not only a misconduct but it is an offence also.

It is therefore submitted that the deceased employee is not entitled to

any leniency.

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7. Heard the learned counsel for the respective parties at length.

8. At the outset, it is required to be noted that in the disciplinary

proceedings, the misconduct of driving the vehicle under the influence of

the alcohol and when the employee was driving the vehicle under the

influence of alcohol the vehicle met with an accident has been held to be

proved and therefore the Disciplinary Authority awarded the punishment

of dismissal. The only prayer on behalf of the appellant/s is that the

punishment of dismissal is disproportionate to the misconduct proved

and leniency may be shown and the order of dismissal be converted into

compulsory retirement.

9. However, it is required to be noted that the employee was the

driver 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 time

when 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 break failure, the accident took place and the truck dashed to the

backside of the jeep has been disbelieved. The fact that he was driving

the truck under the influence of alcohol has been established and

proved, even on the medical examination conducted on the same date.

Driving a truck carrying the P.A.C. personnel under the influence of

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alcohol is a very serious misconduct and such an indiscipline cannot be

tolerated and that too in the disciplined Military.

10. Merely because there was no major loss and it was a minor

accident cannot be a ground to show leniency. It was sheer good luck

that the accident was not a fatal accident. It could have been a fatal

accident. When the employee was driving a truck carrying the P.A.C.

personnel, the lives of those P.A.C. personnel who were travelling in the

truck were in the hands of the driver. Therefore, it can be said that he

played with the lives of those P.A.C. personnel, who were on duty and

travelling from Fatehpur to Allahabad on Kumbh Mela duty.

11. Even otherwise, driving a vehicle under the influence of alcohol is

not only a misconduct but it is an offence also. Nobody can be permitted

to drive the vehicle under the influence of alcohol. Such a misconduct of

driving a vehicle under the influence of alcohol and playing with the life

of the others is a very serious misconduct. There are also other

misconducts earlier committed by the employee.

12. However, at the same time, considering the statement of the

employee at the time of the enquiry and the explanation given by him

that on going to duty on taking the vehicle from battalion, he had not

consumed the liquor and after the accident with the objective to

suppress the fear on coming to battalion and on parking the vehicle, he

went directly to bus terminal, Ghazipur and consumed 100 ml of country

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made wine, though has not been accepted but that might be plausible

and considering his 25 years of long service and fortunately it was a

minor accident which resulted into some loss to the vehicle and

considering the fact that the employee has since died, we find that the

punishment of dismissal can be said to be too harsh and may be treated

one for compulsory retirement.

13. In view of the above and for the reasons stated hereinabove and in

the peculiar facts and circumstances of the case, narrated hereinabove,

the award of punishment of dismissal can be said to be too harsh, the

punishment of dismissal is directed to be converted into compulsory

retirement of the employee. As the employee has since died, and on

converting the punishment of dismissal to that of compulsory retirement,

death-cum-retirement benefits as also the benefit of family pension, if

any, shall be paid to the legal heirs of the deceased employee in

accordance with law and bearing in mind that punishment of dismissal

has now been converted into one of compulsory retirement. The present

appeal is partly allowed to the aforesaid extent. However, there shall be

no order as to costs.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J.
JANUARY 25, 2022. [B.V. NAGARATHNA]

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