Bibek Chaudhuri, J. – Heard learned Advocate for the petitioner as well as learned Advocate for the State. 2. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India seeking for the following reliefs: – “(i) A certiorari setting aside an order dated 30.11.2021 passed in Service Appeal Case No. 15/2020 by the Divisional Commissioner Koshi Division, Saharsa (Respondent No.2) whereby and where-under the Respondent concerned has in a very casual, mechanical, illegal and torturous manner rejected the service appeal of the petitioner filed against the order of punishment dated 15.01.2020 passed from the level of Respondent District Magistrate, Supaul contained in Memo No. 332 dt. 15.1.2020 without application of it's own judicial mind which has no legal leg to stand upon. (ii) A further certiorari setting aside the order of punishment passed against the petitioner from the level of Respondent District Magistrate, Supaul contained in Memo No. 332 dated 15.01.2020 in a very arbitrary, illegal, unjust and prejudiced manner which is a case of no evidence and violation of principle of natural justice. (iii) A mandamus commanding and directing the Respondent concerned to reinstate the petitioner in service w.e.f. the date of his dismissal alongwith all its consequential monetary benefits, as the poor third grade employee petitioner is being penalized and tortured at the behalf of some interested high- ups without any fault on his part.” 3. It is the case of the original writ petitioner (since deceased) that when he was posted in the office of S.D.O. at Nirmali P.S. On 5th February, 2018 he was apprehended by the S.H.O. of the said Police Station on the allegation that he contravened Section 37 (a) and 37 (c) of the Bihar Prohibition and Excise Act, 2016. After his arrest he was in Judicial custody for few days. As per the relevant provision of the Service Code, the original petitioner was suspended from service as he was in incarceration for more than 48 hours. Subsequently, he was released on bail and on his prayer the order of suspension was revoked and he was directed to join his service. However, on the same ground that he consumed alcohol in contravention of the above mentioned provision of the 2016 Act, a departmental proceeding was initiated. Simultaneously, a criminal case was also initiated, which is still pending. 4. However, on the same ground that he consumed alcohol in contravention of the above mentioned provision of the 2016 Act, a departmental proceeding was initiated. Simultaneously, a criminal case was also initiated, which is still pending. 4. In the meantime, the District Magistrate, Supaul passed an order in conclusion of the disciplinary proceeding on 11th January, 2020 and communicated on 15th January, 2020 holding as follows: – ^^Jh izHkkdj dqekj flag] rRdkyhu fyfid] vuqeaMy dk;kZy;] fueZyh lEizfr vapy dk;kZy;] fd'kuiqj ds fo:) xfBr vkjksi] mDr xfBr vkjksi Ik= ij muds }kjk lefiZr Li"Vhdj.k] lefiZr Li"Vhdj.k ij miLFkkiu inkfèkdkjh dk earO; rFkk of.kZr ekeys esa lapkyu inkfèkdkjh }kjk foHkkxh; dk;Zokgh lapkyuksaijkUr lefiZr vfHkys[kc) tkap izfrosnu ds ifj'khyu ,oa leh{kk ls ;g ckr iw.kZr% Li"V gS fd Jh flag vkjksih dehZ fueZyh esa 'kjkc ds u'ks esa Fks vkSj fueZyh Fkkukè;{k }kjk 'kjkc ihdj gaxkek djrs gq, idM+k x;k gS rFkk cszFk ,uykbZtj ls tkap djus ij vYdksgy dh ek=k 102 ,eth@100 ,e ik;k x;k vkSj vkjksih dehZ dh fpfdRlh; tkap izkFkfed LokLF; dsUnz] fueZyh esa dkjZokbZ dh xbZA ftlesa fpfdRld ds }kjk buds 'kjkc ihus dh iqf"V dh xbZ gSA rnqijkUr vkjksih dehZ ds fo:) fueZyh Fkkuk dkaM lañ&18@2018 fnukad 05-02-2018 fcgkj e| fu"ksèk ,oa mRikn vfèkfu;e] 2016 dh èkkjk 37¼lh½ ds rgr fxjrkj djds U;k;ky; esa is'k fd;k x;kA tgka ls mudks U;kf;d fgjklr esa Hkst fn;k x;kA tekur ls eqDr gksus ds mijkUr fnukad 28-02-2018 dks ;ksxnku lefiZr fd;k x;kA orZeku esa ekeyk U;k;ky; esa fopkjkèkhu gSA Jh flag }kjk vius i{k ,oa cpko esa 13-8-2019 dks lefiZr f}rh; dkj.k&i`PNk ds voyksdu ls Li"V gksrk gS fd muds }kjk Li"Vhdj.k esa rF;ghu] vkèkkjghu ckrksa dk mYys[k fd;k x;k gS tks Lohdkj ;ksX; ugha gSA buds }kjk lefiZr dkj.k&i`PNk esa ,slh dksbZ ckr dk mYys[k ugha gS ftlij iqufoZpkj fd;k tk ldsA bUgsa viuk i{k j[kus gsrq Ik;kZIr volj fn;k x;k ijUrq buds }kjk fdlh izdkj dk Bksl i{k ,oa lk{; izLrqr ugha fd;k x;kA vr% Jh flag ds f}rh; dkj.k&i`PNk dks vLohd`r fd;k tkrk gSA fu"d"kZ%&Jh flag ds czsFk ,uykbZtj tkaPk esa vYdksgy dh ek=k 102 ,eth@100 ,e ik;k x;k rFkk fpfdRlk inkfèkdkjh] izkFkfed LokLF; dsUnz] fueZyh }kjk Hkh vYdksgy lsou dh iqf"V dh xbZ gSA blds fy, os iw.kZ:is.k nks"kh gSaA budk ;g d`R; fcgkj e|fu"ksèk vkSj mRikn vfèkfu;e] 2016 ds dafMdk 37¼d½ ,oa 37¼x½ vkSj fcgkj ljdkjh lsod vkpkj fu;ekoyh] 1976 ds dafMdk&3-1 ds midafMdk i, ii, iii rFkk fu;e 04 ¼;Fkkla'kksfèkr fu;ekoyh] 2017½ esa fufgr funs'k ds izfrdwy gSA buds bl vkpj.k ls vU; dfeZ;ksa ij Hkh izfrdwy izHkko iM+ ldrk gS rFkk vU; dfeZ;ksa chp xyr lans'k tk;sxkA buds bl d`R; ds fy;s o`gn 'kkfLr vfèkjksfir fd;k tkuk mfpr izrhr gksrk gSA vr,o mijksDr izekf.kr vkjksiksa ds fy;s Jh izHkkdj dqekj flag] rRdkyhu fyfid] vuqeaMy dk;kZy;] fueZyh lEizfr vapy dk;kZy;] fd'kuiqj ds lapkyu izfrosnu ,oa Jh flag }kjk lefiZr f}rh; Li"Vhdj.k ds lE;d fopkjksaijkUr fcgkj ljdkjh lsod ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh] 2005 ;Fkk ¼la'kksfèkr½ fu;ekoyh] 2007 ds fu;e&14 ds mi dafMdk& (X) esa fufgr izkoèkkukuqlkj eSa egsUnz dqekj] Hkkñizñlañ] ftyk n.Mkfèkdkjh ,oa lekgrkZ] lqikSy bl vkns'k fuxZeu dh frfFk ls lsok ls c[kkZLr ¼fMlfel½ tks lkekU;r;k ljdkj ds vèkhu Hkfo"; esa fu;kstu ds fy;s fujgZrk gksxh½ djus dk naM ¼'kkfLr½ nsrk g¡wA bl vk'k; dh izfof"V Jh izHkkdj dqekj flag ds lsokiqLr esa yky jks'kukbZ ls vafdr dh tk;sxhA lkFk gh foHkkxh; dk;Zokgh dh izfØ;k lekIr dh tkrh gSA** 5. The original writ petitioner challenged the order of the disciplinary authority, whereby the disciplinary authority had dismissed him from his service on the ground that he took a specific defence that at the relevant point of time he was suffering from cold and cough and he took cough syrup containing certain percentage of alcohol and on suspicion he was arrested. It is also stated by the delinquent employee that no scientific examination was done by the Medical Officer or any other authority to conclusively ascertain as to whether he consumed alcohol or not on 5th February, 2018. His blood and urine samples were not taken for examination of percentage of alcohol in his blood or urine. Therefore, on the basis of breathe analyzer report a person cannot suffer major penalty like dismissal from service. 6. Having heard the learned Advocate for the petitioner and the State respondents and on perusal of the entire materials on record, this Court likes to record that breathe analyzer report is not a conclusive proof of consuming liquor by a person. 7. In Bachubhai Hassanalli Karyani vs. State of Maharashtra, reported in 1971 (3) SCC 930 , the Hon’ble Supreme Court held that no conclusion with regard to consumption of alcohol by a person can be made on the facts that the appellant’s breathe was smelling of alcohol, that his gait was unsteady, that his speech was incoherent and that his pupils were dilated. Consumption of alcohol can only be ascertained by way of blood and urine test by a person suspected to have consumed alcohol. 8. In the instant case, there is also no allegation that at the time of arrest the gait of the original petitioner was unsteady, he was speaking incoherently or that his pupils were dilated. 9. In the above stated report, the Honble Supreme Court found that the blood and urine examination of the appellant was not done and finally held that mere smelling of alcohol is not enough to hold that the petitioner consumed alcohol on the date of his apprehension. 10. For the reasons stated above, I have no other alternative but to hold that the disciplinary authority failed to consider the observation of the Hon’ble Supreme Court and based his order of punishment of the original petitioner of breathe analyzer report which cannot be said to be a conclusive report of consumption of alcohol. 11. 10. For the reasons stated above, I have no other alternative but to hold that the disciplinary authority failed to consider the observation of the Hon’ble Supreme Court and based his order of punishment of the original petitioner of breathe analyzer report which cannot be said to be a conclusive report of consumption of alcohol. 11. For the reasons stated above, this Court is not in a position to uphold the impugned order dated 11th January, 2020, communicated on 15th January, 2020, passed by the District Magistrate, Supaul against the original petitioner as well as the order passed in appeal by the Commissioner based on the order dated 11th January, 2020. Accordingly, both the orders are quashed and set aside. 12. The instant writ petition is allowed.